62019TJ0514
JUDGMENT OF THE GENERAL COURT (Fourth Chamber, Extended Composition)
9 June 2021 (
*1
)
(Civil service – ECB staff – Reimbursement of medical expenses and education expenses – Forgery – Disciplinary proceedings – Dismissal – Criminal proceedings – No further action taken – Acquittal – Competence of the Executive Board – Legal certainty – Time-barred disciplinary proceedings – Adage according to which ‘disciplinary proceedings arising out of a criminal offence must await the outcome of the criminal trial’ – Presumption of innocence – Impartiality of the Disciplinary Committee – Error of law – Probative value of the evidence – Reasonable time – Proportionality of the penalty – Intensity of the judicial review – Liability)
In Case T‑514/19,
DI, represented by L. Levi, lawyer,
applicant,
v
European Central Bank (ECB), represented by F. Malfrère and F. von Lindeiner, acting as Agents, and by B. Wägenbaur, lawyer,
defendant,
ACTION under Article 270 TFEU and Article 50a of the Statute of the Court of Justice of the European Union seeking, first, annulment of the ECB’s decision of 7 May 2019 dismissing the applicant without notice on disciplinary grounds and of its decision of 25 June 2019 refusing to reopen the disciplinary proceedings, second, an order that the applicant be reinstated as from 11 May 2019 and, third, compensation for the non-material damage which the applicant claims to have suffered as a result of those decisions and by reason of the length of the disciplinary proceedings,
THE GENERAL COURT (Fourth Chamber, Extended Composition),
composed of S. Gervasoni, President, L. Madise, P. Nihoul, R. Frendo (Rapporteur) and J. Martín y Pérez de Nanclares, Judges,
Registrar: P. Cullen, Administrator,
having regard to the written part of the procedure and further to the hearing on 9 October 2020,
gives the following
Judgment
I. Background to the dispute
1
The applicant, DI, joined the European Central Bank (ECB or ‘the Bank’) as a member of staff in 1999. He performed the duties of senior IT assistant, classified in salary band D, when he became the subject of disciplinary proceedings concerning claims for reimbursement of, first, physiotherapy invoices, second, receipts for pharmacy expenses and, third, learning support invoices.
2
By several notes dated from 13 December 2013 to 23 November 2015, the company managing the ECB’s health insurance scheme (‘Company A’) informed it of two sets of facts. First, the applicant allegedly unlawfully submitted to it physiotherapy invoices for reimbursement, even though those invoices had been provided by B, a beautician, and, second, he allegedly claimed reimbursement of fake receipts for pharmacy expenses.
3
On 14 May 2014, the ECB reported to the Staatsanwaltschaft Frankfurt am Main (Public Prosecutor’s Office, Frankfurt am Main, Germany, ‘the Public Prosecutor’s Office’) the facts concerning the reimbursement of the physiotherapy invoices.
4
By decision of 21 October 2014, the ECB’s Executive Board decided to suspend the applicant from his functions and to deduct 30% of his basic salary for a maximum period of four months as from November 2014. That decision was based on the information provided by Company A and by the need to safeguard the criminal investigation and the disciplinary follow-up.
5
On 23 January 2015, the ECB sent the Public Prosecutor’s Office the additional information which Company A had provided to it concerning the claims for reimbursement of the pharmacy receipts.
6
After hearing the applicant on 3 February 2016, the Directorate-General (DG) for ‘Human Resources, Budget and Organisation’ of the ECB drew up, on 8 September 2016, a ‘report on a possible breach of professional duties’ (‘Report No 1’), pursuant to Article 8.3.2 of the ECB Staff Rules (‘the Staff Rules’). That report found two sets of facts against the applicant. In the first place, from 12 November 2009 to 29 September 2014, the applicant submitted to Company A 86 invoices relating to physiotherapy sessions provided by B to his wife, their children, and himself in the amount of EUR 61490, for which he obtained reimbursement in the amount of EUR 56 041.09, although B is not a physiotherapist but a beautician. In the second place, between February 2009 and September 2013, the applicant also submitted fraudulently to Company A handwritten pharmacy receipts for a total amount of EUR 21 289.08, of which Company A reimbursed EUR 19 427.86.
7
On 12 September 2016, the Public Prosecutor’s Office issued an indictment formally charging the applicant and referring him to the criminal court for fraud within the meaning of Article 263(1) of the Strafgesetzbuch (German Criminal Code) and forgery of documents pursuant to Article 267 of that code for having improperly claimed reimbursement of 71 invoices for physiotherapy treatment. In the same indictment, the Public Prosecutor’s Office, acting in accordance with Article 154 of the Strafprozessordnung (German Criminal Procedure Code), closed the part of the case relating to the pharmacy receipts without taking any further action, since the facts complained of still required substantial measures of inquiry.
8
On 18 November 2016, the ECB’s Chief Services Officer ‘acting on behalf of the Executive Board’ initiated disciplinary proceedings against the applicant for an alleged breach of his professional duties requiring the involvement of the Disciplinary Committee and requested the latter to deliver an opinion in accordance with Article 8.3.15 of the Staff Rules. Initiated in the light of Report No 1, those proceedings concerned the facts relating to the physiotherapy invoices and the pharmacy receipts.
9
The Disciplinary Committee exchanged several letters with the applicant and interviewed him on 13 February 2017.
10
On 5 September 2017, DG ‘Human Resources, Budget and Organisation’ of the ECB drew up a second ‘report on a possible breach of professional duties’ within the meaning of Article 8.3.2 of the Staff Rules (‘Report No 2’). That report concerned learning support invoices for the applicant’s two children, for which he had claimed reimbursement under Article 3.8.4 of the Staff Rules in 2010, 2012 and 2014 and again in January 2017. According to that report, there was a reasonable suspicion that the invoices issued by Tutor C for learning support were not genuine and authentic.
11
In the light of Report No 2, the Chief Services Officer, ‘acting on behalf of the Executive Board’, decided on 19 September 2017 to extend the mandate of the Disciplinary Committee to those facts.
12
On 12 October 2017, the ECB filed a complaint with the Public Prosecutor’s Office concerning the part of the case relating to the learning support invoices.
13
The Disciplinary Committee interviewed the applicant and his wife on 17 October 2017.
14
On 18 October 2017, a criminal chamber of the Landgericht Frankfurt am Main (Regional Court, Frankfurt am Main, Germany) acquitted the applicant of the charges relating to the physiotherapy invoices for ‘reasons of facts’, the court having concluded, ‘following the main proceedings, it was not established … that there was a basis for the accusations’.
15
On 11 April 2018, the Disciplinary Committee delivered its opinion. First of all, it considered that the inauthenticity of the physiotherapy invoices had not been sufficiently established, but that the applicant knew that B was a beautician, not a physiotherapist, or that he should at the very least have questioned her qualifications. Next, the Disciplinary Committee considered that the facts giving rise to the complaints concerning the submission of the pharmacy receipts and learning support invoices were also not sufficiently established and that it was appropriate to close the proceedings in that regard, subject to re-opening them if new evidence were to be produced. In the light of the foregoing, the Disciplinary Committee recommended that a penalty be imposed on the applicant consisting of a temporary salary reduction of EUR 400 per month over a period of 12 months.
16
After the applicant had submitted his observations on the Disciplinary Committee’s opinion of 11 April 2018, the Chief Services Officer notified to him a decision of 10 July 2018 by which the Executive Board decided to exercise itself the disciplinary power in this case (‘the decision of 10 July 2018’).
17
The Chief Services Officer subsequently notified to the applicant a draft decision of the Executive Board seeking to dismiss him without notice. An exchange of correspondence followed.
18
On 7 May 2019, the Executive Board decided to dismiss the applicant without notice (‘the dismissal decision’).
19
First, the Executive Board found that (i) ‘for almost five years, [the applicant] showed complete and persistent disinterest whether [B] had the required qualifications for providing the physiotherapy services, despite their existing clear and manifest objective reasons for inquiring about her qualifications’, and (ii) he had ‘actively concealed part of the information’ from Company A and from the ECB.
20
Second, as regards the pharmacy receipts, of which there were more than 500, the Executive Board took the view that the applicant could not have been unaware that it was very unusual in Germany for them to be handwritten and that there were objective indicia proving that they were not genuine and authentic.
21
Third, as regards the learning support invoices, the Executive Board found, inter alia, that the tax number on those invoices was almost identical to that mentioned on the physiotherapy invoices and that the Frankfurt am Main tax authorities (Germany) had confirmed that it was not genuine. The Executive Board also observed that C’s address on those invoices was also virtually identical to that of B. The ECB therefore considered that it was highly unlikely that the applicant had not noted those similarities. Consequently, the Executive Board found that the applicant had submitted learning support invoices for reimbursement which were not genuine and authentic.
22
In the light of all the foregoing, the Executive Board stated, in essence, that the right to claim reimbursement for medical expenses and learning support did not mean that members of staff may disregard circumstances vitiating the issue of invoices or receipts which were such that any reasonable person exercising ordinary care would have raised questions as to whether those invoices or receipts constituted appropriate documentation entitling them to reimbursement. In the presence of such circumstances, the Executive Board took the view that it was for members of staff at least to inform the administration thereof of their own volition and to cooperate with the administration. The Executive Board therefore concluded that the applicant was guilty, first, of having breached his duty of loyalty to the institution, second, of having failed to respect the ECB’s common values and to conduct himself in his professional and private life in accordance with the ECB’s statute, third, of having continuously breached his duty to preserve the institution’s financial interests and, fourth, of having put at risk the Bank’s reputation.
23
In the meantime, on 30 April 2019, the Public Prosecutor’s Office informed the applicant that the investigation relating to the learning support invoices had been closed pursuant to Article 170(2) of the Code of Criminal Procedure, on the ground that there were not sufficient suspicions to bring a public prosecution.
24
By letter of the same day, registered by the ECB on the following 15 May, the Public Prosecutor’s Office also informed the ECB that that investigation had been closed. In that letter, the Public Prosecutor’s Office added that searches had revealed that there was no official registration of C and that the tax number on her invoices had not been allocated. However, the Public Prosecutor’s Office considered that it could not be ruled out that the invoices in question were indeed issued and paid by the accused and that the false information contained therein could be explained by ‘other reasons’.
25
By letter of 12 June 2019, the applicant informed the Chief Services Officer of the outcome of the proceedings brought by the Public Prosecutor’s Office concerning the learning support invoices and requested that the ECB reconsider its dismissal decision.
26
By letter of 26 June 2019, the Chief Services Officer informed the applicant of the decision of the Executive Board of previous 25 June refusing to reopen the disciplinary proceedings (‘the refusal to reopen the disciplinary proceedings’). That decision is based on two grounds. The ECB contended, first of all, that the Public Prosecutor’s Office had to ascertain whether the alleged facts constituted an infringement of German criminal law in the light of the evidential criteria applicable to criminal proceedings, whereas it had to examine whether the facts alleged constituted an infringement of its own employment rules in the light of different evidential criteria applicable to disciplinary proceedings. Next, it stated that the Public Prosecutor’s Office had confirmed that there was no official registration of C and that the tax number on the invoices was not genuine.
II. Procedure and forms of order sought
27
By application lodged at the Court Registry on 18 July 2019, the applicant brought the present action.
28
The ECB lodged its defence on 8 November 2019.
29
On 22 January 2020, the applicant lodged the reply.
30
On 6 March 2020, the ECB lodged the rejoinder.
31
On 7 July 2020, the General Court requested the ECB, by way of a measure of organisation of procedure under Article 89(3)(d) of the Rules of Procedure, to produce two documents. The ECB complied with that measure of organisation of procedure within the prescribed period.
32
On a proposal from the Fourth Chamber, the General Court decided, pursuant to Article 28 of the Rules of Procedure, to refer the case to a Chamber sitting in extended composition.
33
On a proposal from the Judge-Rapporteur, the General Court (Fourth Chamber, Extended Composition) decided to open the oral part of the procedure and, in the context of the measures of organisation of procedure provided for in Article 89 of the Rules of Procedure, put written questions to the parties, asking them to provide answers at the hearing.
34
The applicant claims that the Court should:
–
annul the dismissal decision and the refusal to reopen the disciplinary proceedings (together ‘the contested decisions’);
–
as a consequence, order his reinstatement as of 11 May 2019 with all related financial entitlements and with the appropriate publicity in order to restore his good name;
–
in any case, order the ECB to compensate him for the non-material damage he has suffered and which he assesses ex aequo et bono at EUR 20000;
–
order the ECB to pay the costs.
35
The ECB contends that the Court should:
–
dismiss the action;
–
order the applicant to pay the costs;
–
in so far as necessary, summons as witnesses the applicant, his wife and his children, and possibly B, to hear them in relation to the physiotherapy invoices or, at least, hear the applicant in that regard as a party to the present proceedings.
III. Law
A. The first head of claim, seeking annulment of the contested decisions
1.
Preliminary observations
36
In support of his claim for annulment, the applicant raises nine pleas in law. In the light of the content of the application, however, it is appropriate to list ten pleas, alleging:
–
the first, lack of competence of the author of the contested decisions;
–
the second, infringement of Article 8.3.2 of the Staff Rules and of the principle of legal certainty;
–
the third, breach of the adage according to which ‘disciplinary proceedings arising out of a criminal offence must await the outcome of the criminal trial’, infringement of the principle of good administration and breach of the duty of care;
–
the fourth, infringement of Article 8.3.7 of the Staff Rules and of the principle of impartiality enshrined in Article 41 of the Charter of Fundamental Rights of the European Union (‘the Charter’);
–
the fifth, infringement of the rights of the defence;
–
the sixth, manifest errors of assessment;
–
the seventh, infringement of the right to the presumption of innocence and of Article 48 of the Charter;
–
the eighth, breach of the reasonable time requirement and of the duty of care;
–
the ninth, breach of the duty to state reasons;
–
the tenth, put forward in the alternative, alleging infringement of the principle of proportionality.
37
However, it is appropriate to examine the third and seventh pleas above together.
38
Furthermore, the ECB submits, generally, that only the first plea, alleging lack of competence of the author of the act, can be linked to the application for annulment of the refusal to reopen the disciplinary proceedings.
39
It should nevertheless be noted that, even though the applicant essentially directs his complaints against the dismissal decision, the third and seventh pleas, alleging, in essence, failure to have regard to the adage according to which ‘disciplinary proceedings arising out of a criminal offence must await the outcome of the criminal trial’ and infringement of the right to the presumption of innocence, are also directed against the refusal to reopen the disciplinary proceedings in the light of the decision of the Public Prosecutor’s Office to close the investigation concerning the learning support invoices. In addition, in the event that the dismissal decision should be annulled, so should the refusal to reopen the disciplinary proceedings, as a consequence of the dismissal decision’s annulment and in the interests of legal certainty, in order to eliminate any potential obstacle to the ECB’s obligation to take, in accordance with Article 266 TFEU, the measures necessary to comply with the judgment.
2.
First plea in law, alleging lack of competence of the author of the contested decisions
40
Under Article 44(ii) of the Conditions of Employment for Staff of the ECB (‘the Conditions of Employment’), the Executive Board may impose dismissal with or without notice as a disciplinary penalty. Article 8.3.17 of the Staff Rules provides, however, that ‘the Chief Services Officer, on behalf of the Executive Board, for members of staff at salary band I or below, … shall decide on the most appropriate disciplinary measure’.
41
In the present case, the Executive Board took the contested decisions, although, according to the applicant, they fell within the competence of the Chief Services Officer, under the delegation of powers provided for in Article 8.3.17 of the Staff Rules.
42
As the ECB contends, however, on 10 July 2018, that is to say, before adopting the dismissal decision, the Executive Board took the decision to exercise itself the disciplinary power in respect of the applicant (see paragraph 16 above).
43
The applicant takes the view, however, that the withdrawal of the delegation from the Chief Services Officer required the Staff Committee’s prior consultation. He therefore is of the view that, in the absence of such consultation, the decision of 10 July 2018 was unlawful, with the result that the Executive Board took the dismissal decision instead of the legally competent authority.
44
In order to justify the fact that the Staff Committee should have been consulted, the applicant claims, first, that the decision of 10 July 2018 constituted a modification of the Staff Rules and that such a modification requires consultation of that committee in accordance with Article 21 of the ECB Rules of Procedure and the principle of parallel proceedings.
45
However, contrary to what the applicant claims, the decision of 10 July 2018 did not repeal Article 8.3.17 of the Staff Rules. As he himself acknowledges in the reply, that decision concerned only him and solely the case at issue. It therefore has only individual application.
46
The obligation to consult the Staff Committee is limited to the amendment of acts of general application (order of 9 November 2017, Bowles v ECB, T‑564/16, not published, EU:T:2017:816, paragraph 48). Article 48 of the Conditions of Employment provides that the Staff Committee ‘shall represent the general interests of all members of staff in relation to contracts of employment; staff regulations and remuneration; employment, working, health and safety conditions at the ECB, social security cover and pension schemes’. Moreover, according to Article 49 of the Conditions of Employment, ‘the Staff Committee shall be consulted prior to changes in these Conditions of Employment, the Staff Rules and related matters as defined under paragraph 48 above’.
47
The applicant nevertheless claims, in the second place, that, even if he was the only one concerned by the decision of 10 July 2018, the possibility for the Executive Board to deal with individual cases means that Article 8.3.17 of the Staff Rules cannot be regarded as a definitive provision, but as a provision which can be varied at will by the ECB. In disciplinary matters, legal certainty and publicity are essential. In those circumstances, the applicant considers that consultation of the Staff Committee would have been useful.
48
It should be noted, in that regard, that the Executive Board is responsible for the ECB’s current business under Article 11.6 of the Protocol on the Statute of the European System of Central Banks and of the ECB and that Article 44(ii) of the Conditions of Employment confers on it more specifically the power to adopt dismissal decisions without notice.
49
In those circumstances, by entrusting to the Chief Services Officer the task of adopting individual dismissal decisions ‘on behalf of the Executive Board’, Article 8.3.17 of the Staff Rules falls within the wide discretion which the EU institutions enjoy to organise themselves internally according to their needs (see, to that effect, judgment of 26 May 2005, Tralli v ECB, C‑301/02 P, EU:C:2005:306, paragraph 58). Although the principle of legal certainty, relied on by the applicant, requires the administration, when adopting rules, to draft them in such a way that they are sufficiently clear to enable individuals to ascertain unequivocally what their rights and obligations are and thus take steps accordingly, that principle does not require the ECB to limit its discretion to organise itself (see, by analogy, judgment of 24 September 2019, US v ECB, T‑255/18, not published, EU:T:2019:680, paragraph 90). Accordingly, the principle of legal certainty does not preclude Article 8.3.17 referred to above from being interpreted as meaning that the relevant decisions of the Chief Services Officer express those of the Executive Board, which fully assumes responsibility for them and to which they are legally attributable.
50
Furthermore, it is true that the rules of good administration in staff management require the division of powers within the ECB to be clearly defined and duly published (judgment of 9 July 2008, Kuchta v ECB, F‑89/07, EU:F:2008:97, paragraph 62). In the present case, Article 8.3.17 of the Staff Rules is published and the ECB justified the decision not to publish the decision of 10 July 2018 in the interest of the applicant, in order to preserve his reputation at a time when the final outcome of the disciplinary proceedings could not be pre-judged. In addition, that decision was notified to the applicant and, accordingly, he was informed of it.
51
Consequently, the decision of the Executive Board to exercise disciplinary power directly in the applicant’s individual case does not lead to a modification of the Staff Rules which would have required the Staff Committee to have been consulted in the interests of legal certainty and publicity, as the applicant claims.
52
Moreover, it should be noted that the applicant has not been deprived of any guarantee. On the contrary, the collegiate exercise of a power, as in this case, offers, in principle, more protection to the addressees of the measures to be taken than a power exercised by a single person (see, to that effect, judgment of 19 September 2019, GE Healthcare v Commission, T‑783/17, EU:T:2019:624, paragraph 182).
53
The first plea is therefore unfounded.
3.
The second plea in law, alleging infringement of Article 8.3.2 of the Staff Rules and of the principle of legal certainty
54
The third indent of Article 8.3.2 of the Staff Rules provides that ‘disciplinary proceedings shall be initiated at the latest within five years from the date of the facts occurring and within one year from the date on which those facts were discovered, save in cases of serious misconduct for which a dismissal may be imposed, where the time limit shall be respectively 10 years and one year’.
55
The applicant claims that the facts were time-barred under that provision owing to the expiry of the time limit of one year from the discovery of the facts.
(a)
Whether or not the one-year time limit is mandatory
56
The ECB contends that the one-year time limit laid down in Article 8.3.2 of the Staff Rules is not mandatory. It submits that, according to the case-law, failure to comply with a time limit entails the annulment of an act only if it is unreasonable, in the sense that it affects the rights of the defence, which the applicant does not claim.
57
Although put forward in the alternative, that argument must be examined first.
58
In that regard, it must be recalled that the function of a limitation period is to ensure legal certainty and that that fundamental requirement prevents the administration from indefinitely delaying the exercise of its powers (see, to that effect, judgments of 10 June 2004, François v Commission, T‑307/01, EU:T:2004:180, paragraphs 45 and 46, and of 8 March 2012, Kerstens v Commission, F‑12/10, EU:F:2012:29, paragraphs 122 and 123). Consequently, in the presence of provisions laying down limitation periods for the initiation of disciplinary proceedings, there is no room for any consideration relating to a reasonable period (see, to that effect and by analogy, judgments of 13 November 2014, Nencini v Parliament, C‑447/13 P, EU:C:2014:2372, paragraphs 52 to 54, and of 18 June 2008, Hoechst v Commission, T‑410/03, EU:T:2008:211, paragraph 224). While it has been accepted that the time limits for disciplinary proceedings were not mandatory, this has been held to be the case only for those relating to the conduct of the proceedings (judgment of 17 March 2015, AX v ECB, F‑73/13, EU:F:2015:9, paragraph 174; see also, as regards the time limits referred to in Section 5 of Annex IX to the Staff Regulations of Officials of the European Union, judgment of 8 March 2012, Kerstens v Commission, F‑12/10, EU:F:2012:29, paragraph 124), and not for those concerning their initiation.
59
The ECB is therefore wrong to maintain that the one-year limitation period laid down in Article 8.3.2 of the Staff Rules is not mandatory.
60
That being so, the ECB contends that the facts were not time-barred in the present case.
(b)
Whether the facts were time-barred
(1) The concept of ‘discovery of the facts’ causing the one-year limitation period to start running
61
The ECB observes that, according to Article 8.3.2 of the Staff Rules, the limitation period of one year does not start to run until the facts have been discovered. It is therefore necessary to establish what that concept covers.
62
It follows, in that regard, from Article 8.3.15 of the Staff Rules that the task of the Disciplinary Committee is inter alia to investigate and establish the facts as thoroughly as possible. In addition, under Article 8.3.14 of those rules, that committee may ask one of its members to carry out further investigations if it considers that its information is insufficient. It follows that the purpose of the disciplinary proceedings is to determine definitively the facts and to establish them at the end of an inter partes procedure.
63
Therefore, the concept of discovery of the facts cannot require exact and detailed knowledge of all the facts constituting a disciplinary offence (see, by analogy, judgment of 8 November 2012, Evropaïki Dynamiki v Commission, C‑469/11 P, EU:C:2012:705, paragraph 37). Furthermore, that concept does not require the facts to be definitively established, since their discovery refers to knowledge of those facts, and not to them being proved (see, by analogy, order of 27 April 2017, CJ v ECDC, T‑696/16 REV and T‑697/16 REV, not published, EU:T:2017:318, paragraph 39).
64
Therefore, it must be accepted, as the Bank maintains, that discovery of the facts for the purposes of Article 8.3.2 of the Staff Rules occurs when the facts known are sufficient to enable a prima facie assessment of whether there has been a breach of professional duties, which in turn depends on the obligations potentially infringed and on the requirements inherent to each of them. Moreover, the applicant does not actually dispute that interpretation.
65
Nevertheless, it is necessary to reject from the outset the ECB’s argument that, because of the serious consequences that the expiry of the limitation period entails, the starting point of that period must be certain in order to ensure legal certainty.
66
In that regard, it should be noted that limitation periods are intended to ensure the legal certainty of the persons who may be prosecuted rather than that of the enforcing authority (see, by analogy, judgment of 13 November 2014, Nencini v Parliament, C‑447/13 P, EU:C:2014:2372, paragraph 52). Moreover, the concept of ‘discovery of the facts’ used by the ECB in Article 8.3.2 of the Staff Rules itself includes a certain degree of uncertainty. Finally, it must be borne in mind that the principle of legal certainty does not require the consequences of any measure to be foreseeable with absolute certainty in the light of the applicable provisions (see, by analogy, judgment of 16 September 2013, Hansa Metallwerke and Others v Commission, T‑375/10, not published, EU:T:2013:475, paragraph 51 and the case-law cited). It is sufficient that they can be completed to a reasonable degree (see, to that effect, judgment of 22 October 2015, AC-Treuhand v Commission, C‑194/14 P, EU:C:2015:717, paragraph 42), without prejudice to review by the EU judicature.
67
That being said, it is necessary to examine in concreto whether the facts were really time-barred in the present case.
(2) The possible time-barring of the disciplinary proceedings relating to the physiotherapy invoices
68
It is apparent from the documents before the court that Company A sent to the ECB, on 13 and 18 December 2013, information relating to possible fraudulent acts on the part of the applicant concerning the reimbursement of the physiotherapy invoices. Next, it provided further information on 20 February, 20 March, 27 May, 13 June, 15 July and 13 and 21 October 2014.
69
The ECB submits that the information referred to in paragraph 68 above, provided by Company A, cannot constitute the ‘discovery of the facts’, because, as an insurer, it could have a personal interest in raising the improper nature of the reimbursements made to the applicant and, therefore, the information it had provided had to be taken with caution.
70
However, it is not apparent from the documents before the Court that the ECB accepted the information from Company A with the reservation that a suspicion of a conflict of interests entails.
71
On the contrary, it is apparent from Company A’s report of 20 November 2014 that the ECB considered, as from December 2013, that the first pieces of information provided by that company were sufficient to initiate its own procedures provided for in the Staff Rules in the event of suspicion of fraud.
72
In addition, on the basis of the information obtained from Company A, the ECB complained to the Public Prosecutor’s Office of the facts concerning the reimbursement of the physiotherapy invoices on 14 May 2014 (see paragraph 3 above).
73
Moreover, according to the report of 20 November 2014, the ECB had asked Company A, on 17 November of that year, to start preparations to recover the amounts paid towards the reimbursement of the applicant’s physiotherapy and pharmacy costs, in the light of the considerable volume of potentially fraudulent claims for reimbursement.
74
Lastly, the information provided by Company A was accompanied by testimonies and other documents which supported them and thus rendered them credible.
75
The ECB also submits that the information obtained from Company A was fragmented compared with the claims for reimbursement which were spread over a period of approximately five years.
76
However, by its report of 13 October 2014, Company A notified the ECB of a total of 91 physiotherapy invoices for a total amount of EUR 56 041.09, which cannot be regarded as fragmented data, since that amount corresponds to the amount indicated in the dismissal decision.
77
In addition, the report of 13 October 2014 led the ECB to take the decision to suspend the applicant from his duties as from 21 October 2014 (see paragraph 4 above).
78
It is true that the ECB maintains that, according to Article 46 of the Conditions of Employment, a suspension decision may be made in the event that ‘an allegation of serious breach of professional duties has been made’ which requires a lower standard of proof than that of a ‘discovery of the facts’ within the meaning of Article 8.3.2 of the Staff Rules.
79
However, the Executive Board stated that the reason for its decision to suspend the applicant was the fact that, in the light of the information provided by Company A, there was sufficiently precise and relevant evidence to allow a finding that he had forged the invoices in question or that he was at the very least aware that they were not genuine. In the light of those factors, the Executive Board considered that, if they proved to be established, those facts would constitute a serious breach of the duties of the person concerned and that it was appropriate to maintain the possibility, in particular, of taking disciplinary action.
80
Thus, even though the Bank justified the suspension decision by evidence which it described itself as sufficiently precise and relevant to presume the existence of a serious breach that could give rise to disciplinary action, the evidence provided by Company A was essentially sufficient to constitute ‘discovery of the facts’ for the purposes of Article 8.3.2 of the Staff Rules, as referred to in paragraph 64 above.
81
It follows that, since the facts disclosed by Company A to the ECB in October 2014 were sufficient to be covered by the concept of discovery of facts for the purposes of Article 8.3.2 of the Staff Rules, it is appropriate to reject the ECB’s other arguments according to which, in order to initiate the disciplinary proceedings, it would have been reasonable to wait for the German judicial authorities to gather further information, inter alia, following a search, or to have the possibility of consulting the Public Prosecutor’s Office file to find new evidence therein. In any event, even if the ECB considered that it needed additional information in order to initiate the disciplinary proceedings, it could have initiated them and suspended them pending the outcome of the criminal proceedings. Even though no provision in force within the ECB or any general principle required that suspension (see paragraphs 105 to 107 below), it could have taken those steps, since the time limits relating to the conduct of the disciplinary proceedings are not mandatory (see paragraph 58 above), there is no reason to believe that the needs of the criminal investigation did not allow to do so and the suspension decision of 21 October on the contrary already referred to it.
82
It follows from all those considerations that more than one year elapsed between the discovery of the facts relating to the physiotherapy expenses in October 2014 and the decision of 18 November 2016 to initiate the disciplinary proceedings.
83
The second plea is therefore well founded in so far as it concerns the part of the case relating to the physiotherapy invoices.
(3) The possible time-barring of the disciplinary proceedings relating to the pharmacy expenses
84
As previously stated (see paragraphs 4 and 73 above), it should be recalled that the applicant was suspended from his duties on 21 October 2014 and that, as early as 17 November 2014, the ECB asked Company A to initiate arrangements to recover the amounts paid towards the reimbursement of the applicant’s health expenses.
85
It is also apparent from the documents before the Court that, on 21 November 2014, Company A sent the ECB a report, dated the previous day and supported by documents, seeking to establish possible fraud on the part of the applicant (see paragraphs 71 and 73 above). That report concerned not only the physiotherapy invoices, but also the reimbursement of handwritten pharmacy receipts. It stated that the owner of the pharmacies in question had declared that his receipts were printed and that those which included handwritten amounts had not been issued by any one of his pharmacies, that the amounts indicated on the copies of receipts sent to him did not correspond to the prices applied, that several products mentioned had never been ordered or were not sold and that the stamps on them had probably been forged. Company A estimated that the sums to be recovered as a result of those receipts was EUR 88 289.65. A list of the receipts at issue was attached to that report.
86
Company A supplemented its report of 20 November 2014 with two emails of 22 and 23 January 2015.
87
Lastly, it is apparent from Report No 1 that the information provided by Company A was sufficient to lead the ECB to communicate the facts concerning the pharmacy receipts to the German judicial authorities on 23 January 2015.
88
In the light of the foregoing, it appears that, as regards the part of the case relating to the pharmacy receipts, the facts brought to the ECB’s attention between 21 November 2014 and 23 January 2015 were sufficient to enable it to make a prima facie assessment of the existence of a breach of professional duties by the applicant.
89
For that reason, and for those already set out in paragraph 66 above, it must be held that, as regards the pharmacy receipts, the limitation period of one year started to run on 23 January 2015 at the latest, and not on the date on which the ECB gained access to the Public Prosecutor’s Office criminal file on 20 November of that year, as the ECB contends. Consequently, on 18 November 2016, the date on which the disciplinary proceedings were initiated, the one-year limitation period had already expired as far as concerns the pharmacy receipts.
90
The second plea is therefore well founded as regards that part of the case.
(4) The possible time-barring of the disciplinary proceedings relating to the learning support invoices
91
The Chief Services Officer decided to extend the mandate of the Disciplinary Committee to the facts relating to the learning support invoices on 19 September 2017 and therefore to initiate the disciplinary proceedings in their respect on that date.
92
The applicant maintains that the factor which led to the opening of that part of the case lay in the fact that the invoices for Tutor C bore a tax number virtually identical to that of the alleged Physiotherapist B. The applicant adds that the ECB was aware of the facts forming the basis of the disciplinary proceedings concerning the physiotherapy invoices since the communication of Company A’s reports and C’s invoices were in his file and were available to the Bank more than a year before the decision to extend the mandate of the Disciplinary Committee. Consequently, in the applicant’s view, the discovery of the facts concerning the learning support invoices cannot stem from the investigations carried out in 2017 by the Disciplinary Committee in the context of the parts of the case concerning the physiotherapy invoices and the pharmacy receipts.
93
It is true that the fact which drew the ECB’s attention to the learning support invoices, namely the virtual identity of B and C’s tax numbers, appeared in the applicant’s file. However, although, in reply to questions seeking to determine whether the services of alleged Physiotherapist B were really provided, the applicant’s legal representative referred on 3 February 2016 to the fact that he was paying for her services in cash, he did not provide any such evidence at that time, despite an express request to that effect. The applicant provided bank statements to the ECB only on 29 September of that year and he provided a table of dates and places where he withdrew money only as an annex to a note of oral argument for the purposes of the hearing by the Disciplinary Committee on 13 February 2017. In addition, the ECB had no reason to take any interest in the learning support invoices in the applicant’s file to ascertain whether they supported his claims before he emphasised his method of remunerating B and submitted documents in support of his assertions. It was only in the course of that in-depth examination, carried out in the context of the part relating to the physiotherapy invoices, that the Disciplinary Committee was called upon to make a connection between those invoices and the learning support invoices. That is all the more so since only a genuine need could justify the examination of sensitive data in the applicant’s file, such as the data relating to support for his children, who it was accepted had medical issues and required specific learning support.
94
More specifically, it is apparent from the documents before the Court that the Disciplinary Committee carried out the investigations which drew its attention to C’s learning support invoices in March 2017 and that, after a number of checks carried out rapidly with the Frankfurt am Main tax and municipal authorities, it requested on 24 April 2017 that its mandate be extended to the facts relating to those invoices.
95
Consequently, the applicant has not established that the ECB discovered the facts relating to the learning support invoices more than a year before the opening of the part of the disciplinary proceedings concerning them on 19 September 2017.
96
It follows that the second plea is unfounded as regards the part of the case relating to the learning support invoices.
(c)
Conclusion as to the second plea in law
97
In the light of the foregoing, the second plea is well founded since the facts relating to the physiotherapy invoices and to the pharmacy receipts were time-barred at the time of the initiation of the disciplinary proceedings concerning them. By contrast, the second plea is unfounded as regards the part of the case relating to the learning support invoices.
98
As regards the effects of the infringement of the limitation period as far as concerns the first two parts referred to in paragraph 97 above on the lawfulness of the dismissal decision, it should be observed that each of the three parts of the case concerned failures of a pecuniary nature consisting, at the very least, in a prolonged lack of care on the part of the applicant as regards the minimum requirements for establishing sufficient documentary evidence of the provision of services and of transactions the cost of which was borne, in whole or in part, by the social security schemes put into place by the ECB for the benefit of its staff. It should also be noted that the ECB, inter alia, considered that those failures came within its powers in financial matters and the ECB inferred therefrom that the applicant had not only breached his duty of loyalty, but also that he had not respected their common values and that he had thus risked the reputation of the Bank.
99
In those circumstances, the ECB did not err in considering, in paragraph 37 of the dismissal decision, that each of the three parts of the case, even taken in isolation, had irreversibly affected the trust underlying the relationship between the ECB and its staff.
100
It follows that the fact that the second plea is partially well founded is not sufficient to justify the annulment of the dismissal decision, since that decision remains prima facie justified by the third part of the case.
101
It is therefore necessary to continue the examination of the other pleas by limiting it to the part relating to the learning support invoices.
4.
The third and seventh pleas in law, alleging, first, infringement of the adage according to which ‘disciplinary proceedings arising out of a criminal offence must await the outcome of the criminal trial’, infringement of the principle of good administration and breach of the duty of care and, second, infringement of the right to the presumption of innocence and Article 48 of the Charter
(a)
Infringement of the adage according to which ‘disciplinary proceedings arising out of a criminal offence must await the outcome of the criminal trial’
102
The applicant claims that the adage according to which ‘disciplinary proceedings arising out of a criminal offence must await the outcome of the criminal trial’ is a general principle of EU law which applies even in the absence of any express provision to that effect.
103
That adage is enshrined in Article 25 of Annex IX to the Staff Regulations of Officials of the European Union. However, as the ECB observes and as the European Union Civil Service Tribunal has already pointed out in its judgment of 17 March 2015, AX v ECB (F‑73/13, EU:F:2015:9, paragraph 125), a similar provision which appeared in the Conditions of Employment was abolished as from 1 January 2009.
104
Moreover, it is true that Article 9(c) of the Conditions of Employment provides that ‘in interpreting the rights and obligations under the present Conditions … due regard shall be shown for the authoritative principles of the regulations, rules and case-law which apply to the staff of other [EU] institutions’. However, the ECB rightly contends that the purpose of that provision is to fill any gaps and that it cannot be used to reintroduce a rule which it has repealed.
105
Moreover, it is true that the case-law based on Article 25 of Annex IX to the Staff Regulations of Officials of the European Union (see, to that effect, judgment of 30 June 2015, Dybman v EEAS, F‑129/14, EU:F:2015:71, paragraphs 35 and 37) describes the adage according to which disciplinary proceedings arising out of a criminal offence must await the outcome of the criminal trial as a principle but does not however grant it the status of general principle of law. The applicant himself does not substantiate his position that it amounts to such a principle.
106
It follows that the ECB is not bound by the adage that disciplinary proceedings arising out of a criminal offence should await the outcome of the criminal trial.
107
The applicant therefore claims unsuccessfully that that adage was infringed in that the disciplinary proceedings relating to the learning support invoices was initiated while the criminal proceedings were ongoing. In the absence of any express provision making it applicable to the ECB, the applicant also unsuccessfully alleges, on the basis of that adage, that the ECB had adopted the dismissal decision before the end of the criminal investigation relating to those invoices.
(b)
Infringement of the right to the presumption of innocence and Article 48 of the Charter
108
The applicant claims that the right to the presumption of innocence, now guaranteed by Article 48 of the Charter, requires a person charged with a criminal offence to be presumed innocent until proved guilty according to the law beyond all reasonable doubt in the course of judicial proceedings. He submits, in particular, that the ECB infringed that right by ignoring the criminal proceedings brought against him and their outcome and by relying on facts which had not been established by the German judicial authorities.
109
In the present case, the Public Prosecutor’s Office’s decision of 30 April 2019 to close the part of the case relating to the learning support invoices pursuant to Article 170(2) of the Code of Criminal Procedure predates the dismissal decision, which was adopted on 7 May 2019. It is not, however, disputed that the ECB was unaware of it on that date.
110
Since the lawfulness of a measure is assessed in the light of the elements of fact and of law available to the administration at the time of its adoption (see judgment of 12 February 2014, Beco v Commission, T‑81/12, EU:T:2014:71, paragraph 44 and the case-law cited), the applicant cannot therefore rely on that closure to challenge the validity of the dismissal decision on the ground that the ECB failed to have regard to the favourable outcome of the criminal proceedings.
111
By contrast, the question arises whether the applicant’s right to be presumed innocent prevented the Bank from basing its dismissal decision on the part of the case relating to the learning support invoices before having become aware of the findings of the judicial authorities.
112
It is apparent from the case-law that the presumption of innocence governs criminal proceedings as a whole, because its purpose is, inter alia, to guarantee that no one will be described or treated as guilty of an offence before his or her guilt has been established by a court (judgments of 8 July 2008, Franchet and Byk v Commission, T‑48/05, EU:T:2008:257, paragraph 210, and of 12 July 2012, Commission v Nanopoulos, T‑308/10 P, EU:T:2012:370, paragraph 91).
113
Furthermore, the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter provide that the Explanations relating to the Charter (OJ 2007 C 303, p. 17) must be taken into consideration for the purpose of its interpretation (judgment of 20 November 2017, Petrov and Others v Parliament, T‑452/15, EU:T:2017:822, paragraph 38). According to those explanations, Article 48 of the Charter has the same meaning and scope as Article 6(2) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’).
114
In those circumstances, Article 6(2) of the ECHR must be taken into consideration for the purposes of interpreting Article 48 of the Charter as a minimum level of protection (judgment of 5 September 2019, AH and Others (Presumption of innocence), C‑377/18, EU:C:2019:670, paragraph 41). Therefore, reference should also be made to the case-law of the European Court of Human Rights (‘the ECtHR’), in accordance with Article 52(3) of the Charter (see, to that effect, judgments of 28 February 2013, Review of Arango Jaramillo and Others v EIB, C‑334/12 RX-II, EU:C:2013:134, paragraph 43; of 18 December 2014, Abdida, C‑562/13, EU:C:2014:2453, paragraph 47; and of 3 September 2015, Inuit Tapiriit Kanatami and Others v Commission, C‑398/13 P, EU:C:2015:535, paragraph 61).
115
According to the case-law of the ECtHR, Article 6(2) of the EHRC safeguards a suspect’s right to the presumption of innocence as from the opening of preliminary investigations into his or her conduct for the purposes of German law (see, to that effect, ECtHR, 27 February 2014, Karaman v. Germany, CE:ECHR:2014:0227JUD001710310, § 43).
116
Consequently, the applicant may invoke the right to the presumption of innocence since he was indeed subject, at the Bank’s own request, to a preliminary investigation for the purposes of German law concerning the learning support invoices, the outcome of which was not yet known when the ECB adopted the dismissal decision.
117
It must therefore be noted that, first, the presumption of innocence is not limited to a procedural guarantee in criminal matters but that its scope is wider, second, infringement of the presumption of innocence can emanate from any public authority (see, to that effect, judgments of 8 July 2008, Franchet and Byk v Commission, T‑48/05, EU:T:2008:257, paragraph 211, and of 12 July 2012, Commission v Nanopoulos, T‑308/10 P, EU:T:2012:370, paragraph 92) and, third, that infringement may result from statements or decisions which reflect the sentiment that the person is guilty, which encourage the public to believe in his or her guilt or which prejudge the assessment of the facts in criminal terms (see, to that effect, judgment of 12 July 2012, Commission v Nanopoulos, T‑308/10 P, EU:T:2012:370, paragraph 91).
118
The case-law has emphasised in that regard the importance of the choice of words used by public authorities. It is important, in that regard, to take into account the true meaning of the statements in question, not their literal form, and the particular circumstances in which they were formulated (see, to that effect, judgments of 5 September 2019, AH and Others (Presumption of innocence), C‑377/18, EU:C:2019:670, paragraph 43; and of 8 July 2008, Franchet and Byk v Commission, T‑48/05, EU:T:2008:257, paragraph 211 and the case-law cited; ECtHR, 28 May 2020, Farzaliyev v. Azerbaijan, CE:ECHR:2020:0528JUD002962007, § 64).
119
In the present case, the applicant was the subject of a fraud investigation within the meaning of Article 263(1) of the German Criminal Code in the light of the learning support invoices. In its dismissal decision, the Executive Board held against the applicant the fact that he had not noted the similarities between the tax numbers and between the addresses on B’s physiotherapy invoices and those of C for learning support, although it could be inferred from those similarities that they were not genuine and authentic. In that context, the Executive Board took the view that the right to claim reimbursement of learning support expenses did not exempt members of staff from being vigilant and ensuring that the documentation relating to the services in question was appropriate. In addition, in the presence of objective circumstances raising doubts as to the right to reimbursement, the Executive Board considered also that it was for the member of staff in question to inform at least the administration. Consequently, the Executive Board concluded that the applicant had, first, breached his duty of loyalty towards the institution, second, failed to fulfil his obligation to respect the ECB’s common values and to conduct his professional and private life in accordance with the ECB’s Staff Rules, third, continuously failed to fulfil his duty to preserve the institution’s financial interest and, fourth, put at risk the reputation of the Bank.
120
Consequently, it is apparent from the dismissal decision as a whole that the ECB considered that the invoices submitted by the applicant were inappropriate for the purposes of the reimbursement of the learning support expenses, without formally attributing to him responsibility for the fact that they were not genuine and authentic. In its dismissal decision, the Bank merely, in essence, penalised negligence which it considered to be particularly serious for a member of staff of a financial institution. That decision thus contains no finding of guilt of the applicant in respect of the offence of fraud which was the subject of the criminal investigation (see, to that effect, ECtHR, 25 August 1987, Englert v. Germany, CE:ECHR:1987:0825JUD001028283, § 39) and is part of an administration’s autonomy in determining the legal characterisation of a disciplinary offence as compared to the enforcement of the same facts under criminal law.
121
Therefore, the ECB did not infringe the applicant’s right to the presumption of innocence by adopting the dismissal decision in so far as it relates to the part of the case relating to the learning support invoices before it became aware of the outcome of the judicial proceedings concerning him.
122
The refusal to reopen the disciplinary proceedings, for its part, occurred after the ECB had been informed that the criminal proceedings against the applicant had been closed because of the learning support invoices pursuant to Article 170(2) of the Code of Criminal Procedure, that is to say, on the ground that there were not sufficient suspicions of guilt to refer the matter to the criminal court.
123
According to the case-law of the ECtHR, the presumption of innocence aims, inter alia, to protect individuals in respect of whom proceedings have been discontinued from being treated by public authorities as though they are in fact guilty of the offence charged (ECtHR, 28 June 2018, G.I.E.M. S.R.L. and Others v. Italy, CE:ECHR:2018:0628JUD000182806, § 314). No distinction must be made in that regard between acquittal on the ground of lack of evidence and acquittal resulting from a formal finding that the accused is innocent (ECtHR, 27 September 2007, Vassilios Stavropoulos v. Greece, CE:ECHR:2007:0927JUD003552204, § 39, and of 23 October 2014, Melo Tadeu v. Portugal, CE:ECHR:2014:1023JUD002778510, § 60).
124
In the present case, the Executive Board justified, on two grounds, its refusal to reopen the disciplinary proceedings after becoming aware of the closure of the investigation into the learning support invoices: first, on the basis of the difference existing between the respective tasks of Public Prosecutor’s Office and the ECB, the former consisting in investigating whether the alleged facts constitute a criminal offence and the latter consisting in examining on a less stringent evidential basis whether those facts reveal disciplinary misconduct; second, by the fact that the Public Prosecutor’s Office had confirmed that Tutor C was not formally registered and that the tax number appearing on her invoices was not genuine.
125
Those grounds do not include any finding that the applicant was guilty under criminal law. Thus, the refusal to reopen the disciplinary proceedings did not infringe his right to the presumption of innocence.
126
The applicant however also submits that the ECB infringed his right to the presumption of innocence by wanting to find him guilty at all costs.
127
It has already been held, in that regard, that there may be a finding of an infringement of the right to the presumption of innocence where there is evidence such as to prove that the appointing authority had decided, from the start of the disciplinary proceedings, to impose in any event a disciplinary penalty on the applicant, irrespective of the explanations provided by him or her and the outcome of the ongoing criminal proceedings (judgments of 13 March 2003, Pessoa e Costa v Commission, T‑166/02, EU:T:2003:73, paragraph 56; of 19 October 2006, Pessoa e Costa v Commission, T‑503/04, EU:T:2006:331, paragraph 118; and of 17 March 2015, AX v ECB, F‑73/13, EU:F:2015:9, paragraph 162).
128
The applicant infers, first of all, that there was bias on the part of the ECB because it disregarded both the criminal proceedings brought against him and their outcome. However, that criticism has just been examined and rejected. Next, the applicant infers that bias from the fact that the Bank extended the mandate of the Disciplinary Committee following an unlawful investigation by one of its members and from the fact that it did not take into account the observations which he submitted during the disciplinary proceedings. However, one of those complaints overlaps with the fourth plea and, the other, the fifth and ninth pleas. They will therefore be examined in the context of those pleas, respectively.
(c)
Infringement of the principles of good administration and breach of the duty of care
129
The applicant submits that, by initiating the disciplinary proceedings relating to the learning support invoices even though the criminal investigation was ongoing and by ignoring its outcome, the ECB infringed the principle of good administration and the duty of care, which require the institutions to examine with care and impartiality all the relevant facts of the case.
130
However, the applicant does not develop any argument which enables the consideration that, in the present case, the principle of good administration and the duty of care should be given a broader scope than that of the right to the presumption of innocence. In particular, it cannot be held that the ECB failed to fulfil its obligation to examine with care and impartiality the relevant facts of the present case since the Public Prosecutor’s Office confirmed, in its letter of 30 April 2019, the evidence on the basis of which the Bank had based its dismissal decision, namely that there was no official registration for C and that the tax number on her invoices was not genuine.
131
In addition, the applicant benefitted from all the other guarantees applicable to disciplinary proceedings, as is apparent from the response to the complaints which he makes in that respect (see the examination of the fourth and fifth pleas below). There is therefore no basis for maintaining that the ECB breached the duty of care and infringed the principle of good administration.
(d)
Conclusion on the third and seventh pleas in law
132
In the light of the foregoing, the third and seventh pleas are unfounded.
5.
The fourth plea in law, alleging infringement of Article 8.3.7 of the Staff Rules and infringement of the principle of impartiality as enshrined in Article 41 of the Charter
133
The applicant maintains that the members of the Disciplinary Committee mistook their role on that committee for their other duties by actively seeking new facts against him. He puts forward four complaints in that regard and accordingly considers that the Disciplinary Committee infringed Article 8.3.7 of the Staff Rules and breached its duty of impartiality.
134
Article 8.3.7 of the Staff Rules provides that the members of the Disciplinary Committee must ‘act in their personal capacity and shall be completely independent in the performance of their duties’.
(a)
The applicant’s first complaint
135
The applicant claims that the Disciplinary Committee examined his personal file and, in particular, all the reimbursements that he had received in order to determine their regularity and that that examination led to the decision of the Chief Services Officer of 19 September 2017 extending the mandate of that committee to the learning support invoices. According to the applicant, that examination exceeded the limits of the mandate initially conferred on the Disciplinary Committee. Report No 1 and the decision of 18 November 2016 of the Chief Services Officer thus limited the scope of that mandate and contain no reference to the learning support invoices.
136
The ECB nevertheless rightly contends that, within the limits of its mandate, an essential part of a Disciplinary Committee’s mission is to investigate and establish the facts as thoroughly as possible. Under Article 8.3.15 of the Staff Rules, the task of that committee is to deliver an opinion on, inter alia, whether the facts are established.
137
More specifically, the ECB submits that the Disciplinary Committee could verify the credibility of the applicant’s statements during his hearing on 13 February 2017 and consult his file in order to examine whether and how the payments which he claimed to have made for physiotherapy treatment and pharmaceutical products could be reconciled with other payments, in cash or by credit card, which he had made. According to the ECB, it was on that occasion that the Disciplinary Committee legitimately discovered the learning support invoices drawn up by C.
138
However, the applicant observes that, under Article 8.3.14 of the Staff Rules, the Disciplinary Committee could carry out further investigations only if the information available to it proved insufficient. He provided ample information and numerous items of evidence that he was accustomed to making his payments both by bank transfer or in cash, so that the Disciplinary Committee had no valid reason to examine his case further.
139
It should be recalled in this respect that the principle which prevails in EU law is that of the unfettered evaluation of evidence, but also that the institutions may not however knowingly use evidence which has clearly been collected in breach of the essential procedural requirements for gathering it and designed to protect the fundamental rights of interested persons (see, to that effect, judgments of 16 June 2015, FSL and Others v Commission, T‑655/11, EU:T:2015:383, paragraphs 42 and 44, and of 8 September 2016, Goldfish and Others v Commission, T‑54/14, EU:T:2016:455, paragraphs 42 and 47).
140
Therefore, only if the Disciplinary Committee’s verifications had manifestly been carried out in breach of the rules governing its investigative powers, would it be appropriate to conclude that the evidence underlying the part of the case relating to the invoices for learning support was unlawful and, therefore, that the resulting disciplinary proceedings were flawed.
141
In the present case, the evidence which, according to the applicant, was sufficient to finalise Report No 1 consisted of a list of cash withdrawals which he had drawn up and some 109 pages of bank statements proving those withdrawals. They also consisted of arguments submitted by his legal representative and minutes recording his hearing on 13 February 2017. The applicant claimed therein that he paid his physiotherapy invoices by means of those withdrawals. However, in its investigations in that context, the Disciplinary Committee did not act unreasonably when it considered it necessary to verify the truth of that assertion by searching in the data available to the ECB whether the applicant was genuinely in the habit of paying in cash the invoices for which he claimed reimbursement. That is all the more so since, at the applicant’s hearing on 3 February 2016, his previous legal representative had himself doubted that there was a withdrawal corresponding to each payment to B.
142
The applicant also claims that the Disciplinary Committee’s search of his personal file was unfounded, since it contains no evidence of payments (see paragraph 128 above).
143
The applicant’s file compiled by the ECB was not, however, limited to his recruitment and career. Since (i) he had been granted increased family allowances pursuant to Article 3.8.4 of the Staff Rules, (ii) he had accordingly obtained reimbursement of the learning support invoices, and (iii) Article 3.3.1 of those rules provides that the persons concerned must furnish evidence of their entitlement to allowances prior to any payment being made by the ECB, the ECB had at its disposal Tutor C’s invoices. Moreover, as is clear from the documents before the Court, those invoices were received by the Bank’s ‘Recruitment and compensation’ division.
144
In those circumstances, in order to attempt to establish that the invoices of alleged Physiotherapist B corresponded to expenses actually incurred, the Disciplinary Committee was entitled to want to compare the information provided by the applicant with the other payments in respect of which he sought reimbursement and evidence of which the ECB retained.
145
Finally, Article 8.3.15 of the Staff Rules required the Disciplinary Committee to suggest ‘any disciplinary measure’. It thus required it to investigate possible extenuating circumstances, such as the manner in which the applicant performed his duties, which may be apparent from his file. In its opinion, the Disciplinary Committee could not have found that the facts of the case constituted the applicant’s first act of misconduct had it not been entitled to consult his file.
146
In those circumstances, it has not been established that the investigation carried out by the Disciplinary Committee of the applicant’s file was biased.
(b)
The applicant’s second complaint
147
The applicant states that it is apparent from Report No 2 that a member of staff in the ‘Legal Affairs’ DG contacted the German tax authorities in order to obtain information on the learning support invoices. He claims that that person could be one of the members of the Disciplinary Committee or that he or she could have acted on the instructions of that committee.
148
However, the applicant fails to explain how such contacts infringe the principle of impartiality and Article 8.3.7 of the Staff Rules. Moreover, Article 8.3.14 of those rules authorises the Disciplinary Committee to take any measure necessary to supplement its information.
149
The applicant’s second complaint has therefore not been established.
(c)
The applicant’s third and fourth complaints
150
The applicant claims that DG ‘Human Resources, Budget and Organisation’ drafted Report No 2, relating to learning support invoices, even though its Director-General was a member of the Disciplinary Committee. He also notes that the same Director-General signed the letter informing him of the extension of the mandate of the Disciplinary Committee. He infers therefrom infringements of the principle of impartiality which the members of the Disciplinary Committee are required to observe.
151
It is true that Report No 2 was drafted in a letter bearing the DG ‘Human Resources, Budget and Organisation’ letterhead and it is also correct that the Director-General of that DG was a member of the Disciplinary Committee. However, that does not allow the conclusion that that Director-General, as member of the Disciplinary Committee, breached his duty of impartiality and infringed Article 8.3.7 of the Staff Rules. Furthermore, the letter in question merely notified to the applicant the decision to extend the mandate of the Disciplinary Committee to facts relating to the learning support invoices, a decision which was taken and signed by the Chief Services Officer acting on behalf of the Executive Board, in accordance with Article 8.3.2 of the Staff Rules.
152
The applicant’s third and fourth complaints are therefore not established.
(d)
Conclusion regarding the fourth plea in law
153
It follows from the foregoing that the fourth plea must be rejected.
6.
Fifth plea in law, alleging infringement of the rights of the defence
154
The applicant alleges an infringement of the rights of the defence on the ground that, in general, the ECB failed to take into account the observations which he submitted during the proceedings (see paragraph 128 above).
155
The applicant did not, however, develop his complaint and did not expressly indicate whether he was referring to all of his observations or to some of them and, in that case, which ones. Thus, that complaint is inadmissible, pursuant to Article 76(d) of the Rules of Procedure.
156
It must, in any event, be rejected as unfounded. The extent of the statement of reasons for the Disciplinary Committee’s opinion and for the dismissal decision and the correspondence between the ECB and the applicant during the proceedings show that it took his arguments into consideration. Moreover, it should be recalled that an applicant cannot confuse failure to observe the rights of the defence with failure to obtain the desired result by the exercise of those rights (see, to that effect, judgment of 6 September 2013, Sepro Europe v Commission, T‑483/11, not published, EU:T:2013:407, paragraph 78).
157
The fifth plea must therefore be rejected.
7.
The sixth plea in law, alleging manifest errors of assessment
(a)
Preliminary observation
158
The applicant claims that numerous grounds of the dismissal decision are vitiated by manifest errors of assessment.
159
It should be noted, however, that the applicant bases his sixth plea, in essence, on complaints alleging that the ECB did not carry out a full examination of the circumstances of the case, it did not correctly assess the evidence submitted to it and it infringed the right to respect for private life.
160
In those circumstances, it must be recalled that the effectiveness of the judicial review guaranteed by Article 47 of the Charter requires the EU judicature to carry out a full review of the accuracy of the facts (see, to that effect, judgments of 11 September 2013, L v Parliament, T‑317/10 P, EU:T:2013:413, paragraph 70, and of 10 January 2019, RY v Commission, T‑160/17, EU:T:2019:1, paragraph 38). In that regard, it must establish whether the evidence relied on is factually accurate, reliable and consistent (see, to that effect, judgment of 23 October 2018, McCoy v Committee of the Regions, T‑567/16, EU:T:2018:708, paragraph 98; see also, by analogy, judgments of 15 February 2005, Commission v Tetra Laval, C‑12/03 P, EU:C:2005:87, paragraph 39; and of 7 April 2016, ArcelorMittal Tubular Products Ostrava and Others v Hubei Xinyegang Steel, C‑186/14 P and C‑193/14 P, EU:C:2016:209, paragraph 36). From that perspective, the assessment of the probative value of a document is also the subject of a comprehensive review (see, to that effect, judgment of 16 September 2004, Valmont v Commission, T‑274/01, EU:T:2004:266, paragraph 43). Thus, even complex or delicate assessments made by the administration must be supported by convincing evidence (see, to that effect, judgments of 15 February 2005, Commission v Tetra Laval, C‑12/03 P, EU:C:2005:87, paragraph 41, and of 7 April 2016, Akhras v Council, C‑193/15 P, EU:C:2016:219, paragraph 56). It is therefore for the EU courts to carry out, even in that context, an in-depth examination of the evidence (see, to that effect, judgment of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala, C‑413/06 P, EU:C:2008:392, paragraph 146).
161
Furthermore, in their review of legality, the courts also conducts a full review of the proper application of the relevant rules of law (judgment of 7 November 2007, Germany v Commission, T‑374/04, EU:T:2007:332, paragraph 81).
162
In the light of the foregoing, it is therefore appropriate to reclassify the sixth plea as alleging, not manifest errors of assessment, but an incomplete examination of the circumstances of the case, errors in the assessment of evidence and an error of law.
(b)
Incomplete examination of the circumstances of the case, errors in the assessment of evidence and error of law vitiating the part of the case relating to the learning support invoices
163
In the first place, the applicant complains that the ECB failed to take account of the closure of the criminal proceedings relating to the learning support invoices.
164
That complaint is, however, indissociable from the third and seventh pleas, which have been held to be unfounded.
165
In the second place, the applicant claims that, by considering that Tutor C’s invoices were not genuine and authentic, the ECB ignored his statements and those of his family that C actually provided support to his children and that she was remunerated in cash. The applicant adds that the ECB also failed to take account of his statements that the similarity between the invoices of alleged Physiotherapist B and of C was due to the fact that his wife had shown C how to draw them up. Finally, the ECB also failed to take into consideration the improvement in the school results of one of his children in the subjects in which C gave her lessons.
166
However, the applicant thus merely repeats his statements and those of his wife during the administrative procedure, without explaining why the ECB made an error of assessment in considering them unconvincing and by finding that he had not adduced any evidence to substantiate them.
167
In the third place, the applicant submits that the ECB erred in relying on the fact that, in its view, it would be unusual for him not to know the contact details of Tutor C, when that tutor regularly visited his home.
168
First of all, according to the applicant, such a complaint infringes his right to organise his private life as he sees fit and there is no ECB rule requiring its officials to know the contact details of tutors giving lessons at home. The fact that their remuneration is reimbursable is not relevant to justify such an interference.
169
It should be noted, however, that the ECB did not in any way interfere in the applicant’s private life by refusing to believe that he did not have minimal information on Tutor C who regularly came to his house to give lessons to his children. In reality, the ECB did not intend to dictate the way in which the applicant seeks to organise his life, but merely took the view that that alleged manner of leading his life was highly unlikely and therefore implausible.
170
Moreover, the ECB draws from its insurance scheme covering the special learning needs of children of members of its staff the right to question one of those members when he or she submits claims for reimbursement in circumstances which it considers to be abnormal. It also draws from the scheme the right to reach any appropriate conclusion on the basis of those circumstances.
171
Next, the applicant submits that the ECB was not entitled to rely on the fact that it was abnormal that he was unable to provide any information on the person who had come, for years, to give lessons at his home, since the unusual nature of a fact does not however constitute proof that it is not real.
172
However, that argument cannot be accepted. The mere possibility that a situation may exist is not sufficient to rule out the possibility that it may be abnormal which, moreover, was duly justified in the dismissal decision.
173
Finally, in view of the foregoing and having failed to substantiate his argument convincingly, the applicant submits just as unsuccessfully that the ECB ignored the fact that the condition of one of his children did not require C’s contact details to be known to organise the lessons.
174
The sixth plea is therefore unfounded.
8.
The eighth plea in law, alleging breach of the reasonable period requirement and of the duty of care
175
The applicant claims that the ECB did not conduct the disciplinary proceedings at issue with the required diligence and it did not ensure that each of the steps of those proceedings followed the previous step within a reasonable period.
176
In the present case, Articles 8.3.15 to 8.3.17 of the Staff Rules provide for time limits for different steps of disciplinary proceedings. However, Article 8.3.15 of those rules provides that, in all cases, the time limit within which the Disciplinary Committee is to forward its opinion ‘shall … be commensurate to the complexity of the case’.
177
In addition, and in general, it is settled case-law that, apart from limitation periods (see paragraph 58 above), the time limits fixed to regulate the course of disciplinary proceedings from a temporal point of view are not mandatory. In the absence of a clearly expressed intention in the applicable legislation to limit, in the interests of legal certainty and the protection of legitimate expectations, the time during which the administration may act, those time limits constitute primarily a rule of good administration whereby the institution is required to conduct the disciplinary proceedings diligently and act in such a way that each procedural step is taken within a reasonable time following the previous step (see, to that effect, judgments of 12 September 2000, Teixeira Neves v Court of Justice, T‑259/97, EU:T:2000:208, paragraph 123, and of 17 March 2015, AX v ECB, F‑73/13, EU:F:2015:9, paragraph 174).
178
In those circumstances, breach of the ‘reasonable time’ requirement can justify annulment of an administrative decision, only where the undue delay is likely to have had an effect on the actual substance of that decision (see, to that effect, judgment of 10 April 2019, AV v Commission, T‑303/18 RENV, not published, EU:T:2019:239, paragraph 87 and the case-law cited). That is the case where the undue delay has adversely affected the ability of the persons concerned to defend themselves effectively (see judgment of 7 June 2018, Winkler v Commission, T‑369/17, not published, EU:T:2018:334, paragraph 34 and the case-law cited).
179
In the present case, the applicant does not claim that the ECB intended to make the time limits laid down in Articles 8.3.15 to 8.3.17 of the Staff Rules mandatory, or that the duration of the proceedings adversely affected his defence.
180
As regards the duty of care, it has also been held that its breach on the ground of lack of expediency may render the institution concerned liable for any damage caused, but that it cannot in itself affect the lawfulness of the contested decision (see, to that effect, judgment of 13 July 2018, Curto v Parliament, T‑275/17, EU:T:2018:479, paragraphs 104 and 105).
181
The eighth plea, alleging breach of the reasonable time requirement and of the duty of care, cannot therefore be upheld in the present case in respect of the claim for annulment.
9.
Ninth plea in law, alleging breach of the duty to state reasons
182
The applicant takes the view that the dismissal decision does not contain an adequate statement of reasons. For the reason set out in paragraph 101 above, there is no need to examine that plea in so far as it specifically challenges the statement of reasons for the dismissal decision so far as concerns the aspects relating to physiotherapy treatments and to the pharmacy receipts.
183
That being so, it should be recalled that the question whether a decision, inter alia, of the ECB, imposing a disciplinary penalty on one of its members of staff, complies with the duty to state reasons must be assessed having regard not only to the wording of that decision, but also to its context and to all the legal rules governing the field concerned, in the present case disciplinary matters. In that regard, although the Executive Board is required to state the elements of fact and law which constitute the legal basis of its decisions, and the considerations which led it to adopt them, it is nevertheless not required to discuss all the issues of fact and law which have been raised during the proceedings. In any event, the reasons given for a decision are sufficient if it was adopted in circumstances known to the member of staff concerned which enable him to understand the scope of the measure concerning him (see judgment of 17 March 2015, AX v ECB, F‑73/13, EU:F:2015:9, paragraph 189 and the case-law cited). However, if, as in the present case, the penalty imposed is finally more severe than that suggested by the Disciplinary Committee, it must be held that, having regard to the requirements of every set of disciplinary proceedings, the ECB’s decision must state in detail the reasons why it has not followed the opinion issued by the Disciplinary Committee (see, to that effect, judgment of 17 March 2015, AX v ECB, F‑73/13, EU:F:2015:9, paragraph 190 and the case-law cited).
184
In the present case, the context in which the dismissal decision was taken was fully known to the applicant, in particular in the light of the numerous written and oral observations which he had made in the course of the disciplinary proceedings on 13 February, 9 March, 17 October and 8 November 2017, 30 April and 14 September 2018, and 31 January 2019.
185
Moreover, the dismissal decision takes account of the complaints made against the applicant, the opinion of the Disciplinary Committee, the various rules and provisions in force at the ECB which the Executive Board considered that the applicant had failed to comply with and the reasons why it had reached that conclusion. The application also shows that the applicant understood that information.
186
The applicant claims, however, in particular, that the dismissal decision does not respond to his observations concerning the limitation period for disciplinary proceedings (see paragraph 128 above).
187
However, the dismissal decision refers to the opinion of the Disciplinary Committee, of which the applicant was aware, and that opinion sets out the reasons why, in the light of Article 8.3.2 of the Staff Rules, the disciplinary proceedings were not, according to the ECB, time-barred.
188
Next, the applicant maintains that, even if the facts were established, the dismissal decision does not explain sufficiently why the ECB adopted a much more severe penalty than that proposed by the Disciplinary Committee and, more specifically, why, on the basis of evidence identical to that examined by that committee, it considered that the relationship of trust was irreparably broken.
189
That complaint is unfounded. It is apparent from the dismissal decision that, unlike the Disciplinary Committee, the Executive Board considered that the applicant had claimed reimbursement of pharmacy expenses receipts and learning support invoices which were not genuine and authentic and that the breaches of the applicant’s duties with regard to the submission of those claims for reimbursement were thus more extensive and more serious than the mere submission of dubious physiotherapy invoices on which that committee had relied.
190
It has indeed been held, in paragraph 97 above, that the facts relating to the physiotherapy invoices and pharmacy receipts were time-barred at the time the disciplinary proceedings were initiated. However, according to settled case-law, the duty to state reasons is an essential procedural requirement which must be distinguished from the question whether the reasoning is well founded, which is concerned with the substantive legality of the measure at issue (see judgment of 24 September 2015, Italy and Spain v Commission, T‑124/13 and T‑191/13, EU:T:2015:690, paragraph 82 and the case-law cited).
191
Moreover, and again contrary to the Disciplinary Committee, the Executive Board considered that the applicant’s relatively low grade and seniority could not have any mitigating impact on his duty to act with honesty and integrity when submitting claims for reimbursement.
192
Lastly, the ECB explained that each part of the case had caused it irremediably to lose trust in the applicant. In that regard, it emphasised that its credibility as an institution responsible for monetary policy and banking control was based on its reputation as a model of efficient and responsible administration, managed by staff with integrity, and stated that the applicant’s conduct was precisely such as to damage its reputation.
193
The ninth plea is therefore unfounded.
10.
The tenth plea in law, put forward in the alternative, alleging infringement of the principle of proportionality
(a)
Preliminary observation
194
It should be noted, as a preliminary point, that, contrary to its title, the tenth plea does not merely allege failure to observe the principle of proportionality in the present case. The applicant infers, in essence, that his dismissal was disproportionate, first, from the lack of factual relevance and accuracy of the aggravating circumstances found by the Disciplinary Committee, second, from the unlawfulness and irrelevance of the additional aggravating circumstances established by the Executive Board, third, from the fact that the Executive Board misconstrued the concept of extenuating circumstances as far as concerns those established by the Disciplinary Committee and, fourth, from the fact that the ECB did not take account of a number of extenuating circumstances which he had put forward in the course of the proceedings. The applicant’s complaints do not therefore criticise directly the disproportionate nature of the penalty. Rather, the applicant infers it from the inaccuracy of certain facts, sometimes errors in the assessment of other facts and their characterisation as aggravating circumstances, and sometimes errors of law and, finally, at other times a failure to carry out a full examination of all the circumstances which may be extenuating.
195
In those circumstances, it must be noted that the General Court carries out a full review of the accuracy of the facts and the proper application of the relevant rules of law (see paragraphs 160 and 161 above).
196
Similarly, the EU judicature also carries out a full review of the classification of the facts (see, to that effect, judgments of 21 June 2012, BNP Paribas and BNL v Commission, C‑452/10 P, EU:C:2012:366, paragraph 102, and of 7 November 2013, Cortivo v Parliament, F‑52/12, EU:F:2013:173, paragraph 41) in the light of objective legal concepts. In particular, it reviews whether or not a fact falls within the legal concepts of aggravating or extenuating circumstances.
197
Finally, although the Conditions of Employment do not specify any fixed relationship between the disciplinary penalties listed therein and the various types of misconduct on the part of officials, and do not state the extent to which aggravating or extenuating circumstances are to be taken into account in the choice of penalty, compliance with Article 47 of the Charter presupposes that a ‘penalty’ imposed by an administrative authority which does not itself satisfy the conditions laid down in that article, as is the case, in the present case, of the Executive Board, must be subject to the subsequent review of a judicial body which has the power to assess fully the proportionality between the misconduct and the penalty (see, judgment of 15 May 2012, Nijs v Court of Auditors, T‑184/11, EU:T:2012:236, paragraph 85 and the case-law cited; see also, to that effect, judgment of 9 September 2010, Andreasen v Commission, T‑17/08 P, EU:T:2010:374, paragraphs 146 and 147; ECtHR, 31 March 2015, Andreasen v. the United Kingdom and 26 other Member States of the European Union, CE:ECHR:2015:0331DEC002882711, § 73). In that regard, the EU judicature ascertains, inter alia, whether the weight attached by the disciplinary authority to the aggravating and extenuating circumstances is proportionate (judgment of 16 March 2004, Afari v ECB, T‑11/03, EU:T:2004:77, paragraph 203).
(b)
The applicant’s first complaint
198
In order to establish an infringement of the principle of proportionality, the applicant disputes the aggravating circumstance, found by the Disciplinary Committee and later by the Executive Board, relating to the fact that he had not proposed to repay all or part of the sums at issue.
199
It must be borne in mind that the Disciplinary Committee took the view that the applicant had breached his duties only by improperly obtaining reimbursement of the physiotherapy invoices, but, by contrast, it considered that the facts concerning the pharmacy receipts and the learning support invoices were not sufficiently established. Consequently, the Disciplinary Committee held the applicant responsible only for the aggravating circumstance that he had not offered to repay the sums improperly received, which it limited to the amount of EUR 56 041.09 corresponding to the reimbursement of the invoices from alleged Physiotherapist B.
200
By contrast, in the dismissal decision, the Executive Board considered that the applicant had unduly obtained, for several years, reimbursement of all the invoices and receipts at issue. Next, in that context, it stated that it was necessary to add to the aggravating circumstances identified by the Disciplinary Committee the fact that the applicant had wholly failed to respect the trust that the ECB had placed in him (see, to that effect, paragraphs 207 and following below).
201
Consequently, in the light of the dismissal decision as a whole, the reference made very succinctly by the Executive Board to the aggravating circumstances found by the Disciplinary Committee must be understood as referring to the fact that the applicant had not proposed to repay all the sums which he had received, including those received by way of reimbursement of the learning support invoices.
202
That said, the applicant states, first of all, in support of his complaint, that he did not have to repay the amount of EUR 56 041.09 because the physiotherapy invoices were genuine and authentic.
203
However, that argument is irrelevant, since (i) the Executive Board accepted as an aggravating circumstance the fact that the applicant had not repaid the sums relating, inter alia, to the learning support invoices (see paragraph 201 above) and (ii) it did not err in finding, in the dismissal decision, that each of the three parts of the case, which concerned misconduct in the context of claims for reimbursement of expenses, had, in the light of the Bank’s financial competences, irreversibly affected the trust that it had placed in him (see paragraph 99 above).
204
Next, the applicant contests that he never offered to repay the sums received. He claims that, in order to bring the proceedings to an end, he offered to pay to the ECB the equivalent of the penalty recommended by the Disciplinary Committee, namely a temporary reduction in remuneration of EUR 400 over a period of 12 months, that is to say EUR 4800. The ECB, however, was entitled not take account of that offer, which was very far removed from the sums at issue, even if they were limited to the amount of EUR 29070 representing the reimbursement of the learning support invoices.
205
Finally, it is to no avail that the applicant claims to have fully cooperated with the Disciplinary Committee’s proceedings. That cooperation, even if proved, does not alter the fact that he had not offered to repay the sum in question. It is, moreover, disputed by the ECB.
206
It follows that the ECB rightly found (see paragraph 196 above) against the applicant, as an aggravating circumstance, the fact that he did not offer the repay the sums unduly received.
(c)
The applicant’s second complaint
207
The applicant criticises the aggravating circumstances which the ECB established in the dismissal decision, in addition to those already relied on by the Disciplinary Committee.
208
Thus, the applicant takes the view, first, that the Executive Board could not take into account, as an aggravating circumstance, the fact that he had breached the trust which the ECB had placed in him, since that finding was not distinct from the misconduct alleged against him in itself.
209
It must be borne in mind that an aggravating circumstance is not a constituent element of an offence, the establishment of which requires proof of material elements and, as the case may be, non-material elements. Therefore, it does not serve to characterise the offence as such, but it affects the level of the penalty once the offence has been established, in order to take account of the seriousness of the facts as a whole and to ensure, in the light of all those facts, the punitive and deterrent effect of the penalty.
210
In the dismissal decision, the Executive Board criticised the applicant for having breached his duty of loyalty towards the ECB, for having failed to fulfil his obligation to respect the ECB’s common values and to conduct his professional and personal life in keeping with the Bank’s status as an EU institution, for having continuously failed to fulfil his duty to protect the financial interests of the institution and for having put at risk the reputation of the Bank. Moreover, it found that the fact that the applicant had absolutely not respected the trust that the ECB had placed in him to be an aggravating circumstance.
211
It is true that the duty of loyalty has an impact on the preservation of a personal relationship of trust between an institution and its officials which affects the maintenance of an employment relationship. That duty requires not only that officials refrain from conduct detrimental to the dignity of the role and the respect due to the institution and its authorities, but also that they conduct themselves in a manner that is beyond suspicion, in order that the relationship of trust between that institution and themselves may at all times be maintained (judgment of 19 May 1999, Connolly v Commission, T‑34/96 and T‑163/96, EU:T:1999:102, paragraph 128). However, it does not follow that all breaches of the duty of loyalty systematically lead to loss of that trust, and therefore dismissal to be the inevitable result. That breach may only be occasional, minor or harmless. In that case, a termination of the employment relationship would be incompatible with the fact that the Conditions of Employment do not establish a fixed relationship between the various types of misconduct and the possible disciplinary penalties.
212
Consequently, the loss of the relationship of trust is not a constituent element of the disciplinary fault consisting in a lack of loyalty, but an aggravating circumstance due to the particularly damaging and serious degree of that lack of loyalty, in particular if the official or other member of staff has shown an absolute lack of respect towards the institution.
213
In the present case, far from being occasional, the facts concerning the reimbursement of the learning support invoices took place over several years, as the applicant himself concedes.
214
Accordingly, in the present case, the ECB was correct to classify the fact that the applicant had completely failed to respect the trust which it had placed in him as an aggravating circumstance.
215
Second, the applicant complains that the ECB mentioned as an aggravating circumstance the fact that a low grade and seniority had no impact on the ability of members of staff to carry out simple checks of their own initiative in circumstances such as those of the case. Again, according to the applicant, that alleged aggravating circumstance is not distinct from the misconduct alleged against him in itself. The applicant further submits that he had no reason to carry out such checks in the present case.
216
That complaint is, however, based on an incorrect reading of the dismissal decision. Contrary to what the applicant suggests, the Executive Board did not consider that his low grade and seniority could contribute to an aggravating circumstance, but, contrary to the Disciplinary Committee, it refused to regard it as an extenuating circumstance. In any event, it is true that the fifth indent of Article 45 of the Conditions of Employment provides that grade and seniority are to be taken into account when determining the penalty. Nevertheless, the Bank did not err in considering that a low grade and seniority did not constitute an extenuating circumstance in the present case, because (i) such a grade and seniority did not justify that a member of staff refrain from carrying out simple checks which do not require any particular skill on his or her own initiative, and (ii) any reasonable person exercising ordinary care would have carried out those checks in the circumstances of the case which were such as to cast a doubt on the right to reimbursement of the sums incurred.
217
As regards the argument that there was, in the present case, no reason to carry out any verification whatsoever, it amounts to disputing the existence of the circumstances from which the ECB inferred that Tutor C’s invoices were not genuine and authentic. It thus overlaps with the sixth plea, which has been held to be unfounded.
218
Third, the applicant disputes that the ECB was able to rely, as an aggravating circumstance, on the fact that its credibility was at stake, even though that credibility had been preserved by the positive outcome of the criminal proceedings brought against him and, in particular, by the publicity given to the judgment of 18 October 2017 of the Landgericht Frankfurt am Main (Regional Court, Frankfurt am Main), which acquitted him of the offences of fraud and forgery of documents relating to the physiotherapy invoices.
219
However, in addition to the fact that the applicant does not provide details of the publicity given to the judgment of the Landgericht Frankfurt am Main (Regional Court, Frankfurt am Main), the ECB was entitled to consider that the facts had affected its reputation and, beyond all, its credibility as a financial institution. Under the second indent of Article 45 of the Conditions of Employment, the ECB may specifically take into account, as aggravating circumstances, the extent to which the conduct of the member of staff has jeopardised the integrity, reputation or interests of the institution, without being required to demonstrate whether persons outside the institution were aware of the conduct of the member of staff concerned and, if so, how many (see, by analogy, judgment of 10 June 2016, HI v Commission, F‑133/15, EU:F:2016:127, paragraph 204 and the case-law cited).
220
Similarly, contrary to what the applicant claims, the ECB was right to find that the fact that he had acted against the financial interests of the institution, which he was moreover required to protect, was an aggravating circumstance. It is sufficient to note in that regard that the applicant’s improper claims for reimbursement necessarily had an impact on the finances of the ECB which ultimately bore those costs.
(d)
The applicant’s third complaint
221
The applicant claims that the Executive Board disregarded the impact of the extenuating circumstances by contending that those established by the Disciplinary Committee did not in any way reduce the ECB’s loss of trust in him.
222
In this case, the Disciplinary Committee had established as extenuating circumstances the applicant’s low grade and seniority, the absence of any disciplinary history and the fact that it could not be certain that Company A would have refused to reimburse B’s invoices if the ‘Kosmetikerin’ stamp had not been omitted from the first invoice.
223
However, without disregarding their nature as extenuating circumstances, the Executive Board was entitled to consider that those circumstances did not in any way offset the ECB’s loss of trust in the applicant.
224
In particular, it follows from paragraph 216 above that the Executive Board did not err in refusing to consider the applicant’s low grade and seniority as an extenuating circumstance, contrary to the Disciplinary Committee’s finding. Moreover, it is true that the eighth indent of Article 45 of the Conditions of Employment provides that, in choosing the disciplinary penalty, account must be taken of the conduct of the member of staff throughout the course of his or her career. However, that provision does not necessarily make the loss of the relationship of trust dependent on repeated misconduct. That may result from a single fact or conduct. In the light of the ECB’s functions, the Executive Board rightly, in the present case, emphasised the rigour required of each member of staff as far as financial matters are concerned.
(e)
The applicant’s fourth complaint
225
The applicant is of the view that regard must be had to the extenuating circumstances on which he had relied before the Disciplinary Committee and in his observations of 30 April 2018, and which, in his opinion, the ECB did not take into account.
226
The applicant refers, first, to the suffering that he and his family had to endure throughout the disciplinary proceedings, during which he was suspended from his functions. He also refers to his right to find inner peace and to be able to restore his good name.
227
However, the duration of the disciplinary proceedings is not one of the factors mentioned in Article 45 of the Conditions of Employment as an extenuating circumstance and is not relevant for determining the disciplinary penalty which, under that article, must be commensurate with the seriousness of the misconduct (see, by analogy, judgment of 10 June 2016, HI v Commission, F‑133/15, EU:F:2016:127, paragraph 200).
228
Moreover, the applicant does not substantiate his complaint. He does not provide any specific evidence of the suffering that he and his family allegedly suffered as a result of the disciplinary proceedings and their length, in particular why they exceeded the concerns and uncertainty inevitably caused by criminal and disciplinary proceedings, and which the ECB should have taken into account as an extenuating circumstance.
229
Similarly, the applicant does not develop the complaint which he derives from his alleged right to find inner peace and to restore his good name. That is particularly true in the context of the present plea, which, put forward in the alternative and limited to contesting the proportionality of the penalty, presupposes that the disciplinary offence is established.
230
Second, the applicant relies on his very good record within the ECB and submits that it should have been taken into account as an extenuating circumstance.
231
However, it follows from paragraph 224 above that the Executive Board was entitled to take the view that the ECB’s trust towards the applicant was lost despite the fact that the facts complained of constituted his first act of misconduct.
232
As to the remainder, the applicant merely produces appraisal reports which were clearly drawn up at the end of 2008 and 2010, and also a brief evaluation in an email of 29 September 2011. Those documents are not conclusive of his general performance between 2011 and his suspension on 21 October 2014, after which his performance was no longer appraised.
233
Consequently, the ECB was correct not to treat the applicant’s record within the Bank as an extenuating circumstance (see paragraph 196 above).
234
Third, the applicant complains that the ECB failed to take into consideration the fact that he had not intended to breach his professional duties, that he had not acted to serve his personal interests and that the institution had not suffered any damage.
235
Under the third indent of Article 45 of the Conditions of Employment, the extent of the intention is a factor which the ECB must take into account to determine the disciplinary penalty.
236
However, it is apparent from the joint examination of the third and seventh pleas and from the sixth plea and, in addition, from paragraph 216 above that the ECB was entitled to consider that it could be inferred from the wording of the learning support invoices that they were not genuine and authentic, that the objective circumstances of the present case, raising doubts as to the right to reimbursement of those invoices, called for simple checks which the applicant was able to carry out and that, like any reasonable person exercising ordinary care, he should have at least informed the administration of those doubts and cooperated with it.
237
In those circumstances, the Executive Board could rightly find (see paragraph 196 above) that the applicant’s lack of intention was not an extenuating circumstance.
238
The same is true of the applicant’s claim that he did not act to serve his personal interests, since he received the reimbursements at issue.
239
The same also applies to the fact that the ECB allegedly did not suffer any damage, since the applicant could not be unaware that reimbursements of education expenses were borne by the ECB. Moreover, and beyond that material damage, it is apparent from the examination of the second complaint raised by the applicant in the context of the present plea that it was reasonable for the ECB to consider that the applicant’s conduct may have affected its reputation and, therefore, its credibility as a financial institution (see paragraph 219 above), thus making it suffer non-material damage also.
240
Fourth, the applicant argues that the ECB failed to take account of the fact that it had received no warning even though the facts at issue took place over a period of four years as regards the learning support invoices and were known and visible to ECB.
241
However, that part of the case concerns claims for reimbursement made in 2010, 2012 and 2014, and in January 2017. It is apparent from the examination of the second plea that the Disciplinary Committee discovered the facts only in the course of March 2017, during the detailed examination of the applicant’s file from the parts of the case relating to the physiotherapy invoices and the pharmacy receipts. In addition, following a number of further investigations, the ECB notified the applicant of the draft future Report No 2 on 19 June 2017, that is to say, only approximately three months after that discovery. In those circumstances, the Bank cannot be criticised for not having issued any warning to the applicant concerning the learning support invoices.
242
The applicant also submits that the facts relating to the physiotherapy invoices and pharmacy receipts took place over a period of five years, also without warning.
243
However, that latter argument is irrelevant since the ECB did not err in finding that each of the three parts of the case, even if taken in isolation, had irreversibly affected the trust which formed the basis of its relationship with its staff (see paragraph 99 above) and therefore the part of the case relating to the learning support invoices, which is not vitiated by any unlawfulness, was sufficient to support the dismissal decision.
(f)
Conclusions on the tenth plea in law and the claim for annulment
244
It follows from the foregoing that the applicant’s complaints raised in the context of his tenth plea are not justified and, consequently, he does not establish the disproportionate nature (see paragraph 197 above) of the dismissal decision.
245
The tenth plea is therefore unfounded.
246
Since the fact that the second plea is partially well founded is not sufficient to justify annulment of the dismissal decision and, therefore, of the refusal to reopen the disciplinary proceedings (see paragraph 100 above) and that no other plea is well founded, the claim for annulment must be dismissed as a whole.
B. The second head of claim, seeking that the Court order the reinstatement of the applicant
247
By his second head of claim, the applicant asks the Court to order his reinstatement.
248
That claim must however be rejected on the ground that it was brought before a court that has no jurisdiction to hear it because the General Court does not have jurisdiction to issue directions to the administration (see, to that effect, order of 22 September 2016, Gaki v Commission, C‑130/16 P, not published, EU:C:2016:731, paragraph 14 and the case-law cited). In addition, since the claim for annulment has been rejected, the present claim must, consequently, also be rejected (see, to that effect, order of 25 May 2011, Meierhofer v Commission, F‑74/07 RENV, EU:F:2011:63, paragraph 69).
C. The third head of claim, seeking compensation for the damage allegedly suffered by the applicant
249
The applicant seeks that the Court order the ECB to pay compensation for the non-material damage which he claims to have suffered and which he assesses ex aequo et bono at EUR 20000.
250
It should be recalled that in order for liability to arise on the part of an institution, organ or body of the European Union, a number of conditions must be satisfied. Thus, the conduct of which the institution, organ or body is accused must be unlawful, actual damage must have been suffered, and there must be a causal link between the alleged conduct and the damage pleaded, those three conditions being cumulative (judgment of 3 October 2019, DQ and Others v Parliament, T‑730/18, EU:T:2019:725, paragraph 47 and the case-law cited).
251
As regards the condition relating to the unlawfulness of the conduct, it should be noted that, according to settled case-law, claims for compensation, submitted jointly with claims for annulment which have no foundation in law, are themselves without any foundation in law if they are closely linked to the claims for annulment (judgments of 30 September 2003, Martínez Valls v Parliament, T‑214/02, EU:T:2003:254, paragraph 43, and of 28 February 2018, Paulini v ECB, T‑764/16, not published, EU:T:2018:101, paragraph 86).
252
Therefore, since the claim for annulment is rejected on the basis that it is without any foundation in law (see paragraph 246 above), the claim for damages must also be rejected in that it is based on the allegedly ‘tough’ terms of the dismissal decision, on the fact that that decision is based on a breach of the relationship of trust which is allegedly irreversible, without the ECB having explained how that trust was irremediably affected, and on the damage to the applicant’s reputation arising from the contested decisions.
253
However, the applicant also infers his damage from the uncertainty in which he found himself because the disciplinary proceedings were unreasonably lengthy.
254
Whereas infringement of the ‘reasonable time’ requirement cannot, in principle, justify the annulment of a decision taken at the end of an administrative procedure (see paragraph 178 above), that infringement may be taken into consideration when examining claims for damages (see, to that effect, judgment of 10 April 2019, AV v Commission, T‑303/18 RENV, not published, EU:T:2019:239, paragraph 87 and the case-law cited).
255
In that regard, it must be recalled that disciplinary proceedings place any official or member of staff in a situation of uncertainty as to his professional future, inevitably causing him some degree of stress and anxiety and that, if that uncertainty persists for an inordinate period, the intensity of the stress and anxiety goes beyond the level of what may be considered justifiable (judgment of 13 January 2010, A and G v Commission, F‑124/05 and F‑96/06, EU:F:2010:2, paragraph 147) and may, in principle, constitute non-material damage.
256
In the present case, however, it must be recalled, as regards the causal link, that the case-law is established as meaning that the applicant must adduce evidence of a direct and certain causal nexus between the fault committed by the institution concerned and the injury pleaded (judgments of 28 September 1999, Hautem v EIB, T‑140/97, EU:T:1999:176, paragraph 85, and of 5 July 2011, V v Parliament, F‑46/09, EU:F:2011:101, paragraph 158). Thus, the conduct complained of must be the determining cause of the injury (order of 31 March 2011, Mauerhofer v Commission, C‑433/10 P, not published, EU:C:2011:204, paragraph 127, and judgment of 8 November 2018, Cocchi and Falcione v Commission, T‑724/16 P, not published, EU:T:2018:759, paragraph 96).
257
In support of his claim for damages, the applicant produces a medical certificate dated 30 October 2017 which attributes, in a sentence, the progressive development of insomnia, the weight-loss and the headaches which he suffered to the ‘employment situation created by the ECB’.
258
In order to assess the probative value of that certificate, account must be taken of all the circumstances of the case.
259
In that regard, it should be noted, in particular, that, whereas the applicant was at risk of a disciplinary penalty as from his suspension on 21 October 2014 until the dismissal decision, on 7 May 2019, he was simultaneously subject to several sets of criminal proceedings. The applicant was consequently the subject of a preliminary investigation on the ground of fraud and forgery of documents for the purposes of Article 263(1) and of Article 267 of the German Criminal Code in connection with the physiotherapy invoices (see paragraph 7 above). Those two offences were punishable by a term of imprisonment of a maximum period of five years. Consequently, his home was searched on 16 October 2014. Subsequently, the preliminary investigation was extended to the part of the case relating to the pharmacy receipts. On 12 September 2016, the applicant was the subject of an indictment from the Public Prosecutor’s Office which, although it closed the part relating to the pharmacy receipts, did, however, formally charge him with fraud and forgery of documents in relation to the physiotherapy invoices and referred him to the criminal court. By judgment of 18 October 2017 of the Landgericht Frankfurt am Main (Regional Court, Frankfurt am Main), the applicant was acquitted as concerns those facts (see paragraph 14 above). However, at the same time, the applicant was prosecuted for fraud in connection with the learning support invoices. He was only told of the end of the criminal proceedings against him by a letter from the Public Prosecutor’s Office dated 30 April 2019 (see paragraph 23 above) informing him of the closure of that part.
260
It follows that the applicant was the subject of criminal proceedings, including a search of his home, and was subject to the anxiety-inducing prospect of a criminal conviction throughout the whole duration, which he considers to be unreasonable, of the proceedings at issue.
261
Furthermore, it should be noted that the applicant maintained, with particular insistence, throughout the disciplinary investigation, and in the present action, that the ECB should have suspended those disciplinary proceedings and not finalised them until it had knowledge of the outcome of the criminal proceedings. The applicant thus necessarily considered that those proceedings were of paramount importance in his case.
262
The ECB cannot be held responsible for the duration of national criminal proceedings.
263
Thus, in that context, the sole medical certificate dated 30 October 2017 that the applicant submitted – which is not substantiated, is devoid of any medical history and does not even refer to the criminal proceedings – does not constitute sufficient evidence that the uncertainties surrounding the length of the disciplinary proceedings were the determining cause of the insomnia, weight loss and headaches referred to in that certificate.
264
In the light of the foregoing, it must be concluded that the applicant, on whom the burden of proof falls (see paragraph 256 above) does not establish to the requisite legal standard the causal link between the allegedly wrongful conduct of the ECB and the damage which he alleges. As stated in paragraph 256 above, that link is one of the cumulative conditions which must be satisfied in order for an institution to incur liability.
265
Consequently, the applicant’s claim for damages must be rejected.
266
Accordingly, the applicant’s action must be dismissed in its entirety.
D. The ECB’s application that the General Court hear the applicant, his wife and children, and possibly B
267
If necessary, the ECB asked the Court to summon as witnesses the applicant, his wife and children, and possibly the alleged Physiotherapist B in order to hear them concerning the physiotherapy invoices or, at the very least, to hear the applicant in that regard as a party to the dispute.
268
Since it has been held that the facts relating to those invoices were time-barred (see paragraph 89 above), it is not appropriate to grant that application.
IV. Costs
269
Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. However, according to Article 135(1) of those rules, if equity so requires, the General Court may decide that an unsuccessful party is to pay only a proportion of the costs of the other party in addition to bearing his own costs, or even that he is not to be ordered to pay any. Furthermore, under Article 135(2) of those rules, the General Court may order a party, even if successful, to pay some or all of the costs, if this appears justified by the conduct of that party, including before the proceedings were brought.
270
In the present case, it is apparent from paragraphs 82 and 89 above that the ECB completed the disciplinary proceedings and found that the applicant had breached his duties in the parts of the case relating to the physiotherapy invoices and to pharmacy receipts despite the fact that they were time-barred.
271
In those circumstances, a decision that the applicant will bear in addition to his own costs three quarters of the ECB’s costs and that the ECB will bear the remaining quarter of its own costs constitutes a fair application of the provisions referred to in paragraph 269 above.
On those grounds,
THE GENERAL COURT (Fourth Chamber, Extended Composition)
hereby:
1.
Dismisses the action;
2.
Orders DI to bear his own costs and to pay three quarters of the costs of the European Central Bank (ECB), which shall bear the rest of its costs.
Gervasoni
Madise
Nihoul
Frendo
Martín y Pérez de Nanclares
Delivered in open court in Luxembourg on 9 June 2021.
[Signatures]
Table of contents
I. Background to the dispute
II. Procedure and forms of order sought
III. Law
A. The first head of claim, seeking annulment of the contested decisions
1. Preliminary observations
2. First plea in law, alleging lack of competence of the author of the contested decisions
3. The second plea in law, alleging infringement of Article 8.3.2 of the Staff Rules and of the principle of legal certainty
(a) Whether or not the one-year time limit is mandatory
(b) Whether the facts were time-barred
(1) The concept of ‘discovery of the facts’ causing the one-year limitation period to start running
(2) The possible time-barring of the disciplinary proceedings relating to the physiotherapy invoices
(3) The possible time-barring of the disciplinary proceedings relating to the pharmacy expenses
(4) The possible time-barring of the disciplinary proceedings relating to the learning support invoices
(c) Conclusion as to the second plea in law
4. The third and seventh pleas in law, alleging, first, infringement of the adage according to which ‘disciplinary proceedings arising out of a criminal offence must await the outcome of the criminal trial’, infringement of the principle of good administration and breach of the duty of care and, second, infringement of the right to the presumption of innocence and Article 48 of the Charter
(a) Infringement of the adage according to which ‘disciplinary proceedings arising out of a criminal offence must await the outcome of the criminal trial’
(b) Infringement of the right to the presumption of innocence and Article 48 of the Charter
(c) Infringement of the principles of good administration and breach of the duty of care
(d) Conclusion on the third and seventh pleas in law
5. The fourth plea in law, alleging infringement of Article 8.3.7 of the Staff Rules and infringement of the principle of impartiality as enshrined in Article 41 of the Charter
(a) The applicant’s first complaint
(b) The applicant’s second complaint
(c) The applicant’s third and fourth complaints
(d) Conclusion regarding the fourth plea in law
6. Fifth plea in law, alleging infringement of the rights of the defence
7. The sixth plea in law, alleging manifest errors of assessment
(a) Preliminary observation
(b) Incomplete examination of the circumstances of the case, errors in the assessment of evidence and error of law vitiating the part of the case relating to the learning support invoices
8. The eighth plea in law, alleging breach of the reasonable period requirement and of the duty of care
9. Ninth plea in law, alleging breach of the duty to state reasons
10. The tenth plea in law, put forward in the alternative, alleging infringement of the principle of proportionality
(a) Preliminary observation
(b) The applicant’s first complaint
(c) The applicant’s second complaint
(d) The applicant’s third complaint
(e) The applicant’s fourth complaint
(f) Conclusions on the tenth plea in law and the claim for annulment
B. The second head of claim, seeking that the Court order the reinstatement of the applicant
C. The third head of claim, seeking compensation for the damage allegedly suffered by the applicant
D. The ECB’s application that the General Court hear the applicant, his wife and children, and possibly B
IV. Costs
(
*1
)	Language of the case: English.