62013FJ0073_EN
Parties
Grounds
Operative part
Parties
In Case F‑73/13,
ACTION brought under Article 36.2 of the Protocol on the Statute of the European System of Central Banks and of the European Central Bank, annexed to the EU Treaty and to the FEU Treaty,
AX, former member of the staff of the European Central Bank, residing in Kibæk (Denmark), represented by L. Levi, lawyer,
applicant,
v
European Central Bank (ECB),
represented by M. López Torres and E. Carlini, acting as Agents, assisted by B. Wägenbaur, lawyer,
defendant,
THE CIVIL SERVICE TRIBUNAL (First Chamber)
composed of R. Barents, President, E. Perillo and J. Svenningsen (Rapporteur), Judges,
Registrar: X. Lopez Bancalari, Administrator,
having regard to the written procedure and further to the hearing on 2 December 2014,
gives the following
Judgment
Grounds
1. By application received at the Registry of the Tribunal on 17 July 2013, AX seeks, inter alia, first, the annulment of the decision of the Executive Board of the European Central Bank (the ECB, or ‘the Bank’) of 28 May 2013, imposing on him the disciplinary measure of dismissal with notice and, secondly, that he be granted EUR 20 000 in respect of the non-material harm he has allegedly suffered.
Legal context
1. The Protocol on the Statute of the European System of Central Banks and of the European Central Bank
2. The Protocol on the Statute of the European System of Central Banks and of the European Central Bank annexed to the EU Treaty and to the FEU Treaty (‘the Protocol on the Statute of the ESCB and of the ECB’) provides, in Article 36 thereof, entitled ‘Staff’, as follows:
‘36.1	The Governing Council, on a proposal from the Executive Board, shall lay down the conditions of employment of the staff of the ECB.
36.2 The Court of Justice of the European Union shall have jurisdiction in any dispute between the ECB and its servants within the limits and under the conditions laid down in the conditions of employment.’
2. The Rules of Procedure of the ECB
3. On 7 July 1998, on the basis of Article 12.3 of the Protocol on the Statute of the ESCB and of the ECB, the Governing Council of the ECB adopted the Rules of Procedure of the ECB. Article 11 of those Rules, entitled ‘Staff of the ECB’, in the version applicable to the present proceedings and resulting from the Decision ECB/2009/5 of 19 March 2009 (OJ 2009 L 100, p. 10) provides, in paragraphs 2 and 3 thereof, as follows:
‘11.2	Without prejudice to Articles 36 and 47 of the [Protocol on the] Statute [of the ESCB and of the ECB], the Executive Board shall enact organisational rules (hereinafter referred to as Administrative Circulars) which are binding on the staff of the ECB.
11.3 The Executive Board shall adopt and update a Code of Conduct for the guidance of its members and of the members of staff of the ECB.’
4. Entitled ‘Conditions of Employment’, Article 21 of the Rules of Procedure of the ECB reads as follows:
‘21.1 The Conditions of Employment and the Staff Rules shall determine the employment relationship between the ECB and its staff.
21.2 The Governing Council, upon a proposal from the Executive Board and following consultation of the General Council[,] shall adopt the Conditions of Employment.
21.3 The Executive Board shall adopt the Staff Rules … that shall implement the Conditions of Employment.
21.4 The Staff Committee shall be consulted before the adoption of new Conditions of Employment or Staff Rules. Its opinion shall be submitted to the Governing Council or the Executive Board respectively.’
3. The Conditions of Employment for Staff of the ECB
5. On the basis of Article 36.1 of the Protocol on the Statute of the ESCB and of the ECB and, in particular, the Rules of Procedure of the ECB, the Governing Council of the ECB adopted, by decision of 9 June 1998, amended on 31 March 1999 (OJ 1999 L 125, p. 32), the Conditions of Employment for Staff of the ECB (‘the Conditions of Employment’). Subsequently, the Conditions of Employment were amended several times. The version of the Conditions of Employment in force on 1 January 2010 provided, inter alia, as follows:
‘3. The privileges and immunities enjoyed by the staff of the ECB under the Protocol on the Privileges and Immunities of the European [Union] are accorded solely in the interests of the ECB. These privileges and immunities shall in no way exempt members of staff from fulfilling their private obligations or from complying with the laws and police regulations in force. …
4. (a) Members of staff shall perform their duties conscientiously and without regard to self-interest. They shall conduct themselves in a manner befitting their position and the character of the ECB as a [European Union] body …
…
9. (a) Employment relations between the ECB and its members of staff shall be governed by employment contracts issued in conjunction with [the] Conditions of Employment. The Staff Rules adopted by the Executive Board shall further specify the application of [the] Conditions of Employment.
…
(c) No specific national law governs [the] Conditions of Employment. The ECB shall apply (i) the general principles of law common to the Member States, (ii) the general principles of European [Union (EU)] law, and (iii) the rules contained in the [EU] regulations and directives concerning social policy which are addressed to Member States. Whenever necessary, these legal instruments will be implemented by the ECB. [EU] recommendations in the area of social policy will be given due consideration. In interpreting the rights and obligations under the … Conditions of Employment, due regard shall be shown for the authoritative principles of the regulations, rules and case[-]law which apply to the staff of the [EU] institutions.
…
11. (a) Contracts of members of staff may be terminated by the ECB on a reasoned decision of the Executive Board in accordance with the procedure laid down in the Staff Rules and on the following grounds:
…
(iv) 	for disciplinary reasons.
(b) During the probationary period or in the case of dismissal for disciplinary reasons, the period of notice shall be one month.
…
41. Members of staff may ask for an administrative review of decisions taken in their individual cases, using the procedure laid down in Part 8 of the Staff Rules.
…
Disciplinary measures may only be challenged by means of the special appeals procedure laid down in the Staff Rules.
…
44. The following disciplinary measures may be taken, as appropriate, against members of staff … who, whether intentionally or through their negligence, breach their professional duties:
(i) …
(ii) in addition, the Executive Board may impose any of the following:
…
– demotion with a corresponding change in the employment position of the member of staff within the [ECB],
– dismissal with or without notice, accompanied, in duly justified circumstances, by a reduction of benefits under the pension arrangements … or the disability allowance; the effects of this measure shall not extend to dependants. …
...
45. Disciplinary measures shall be proportional to the seriousness of the breach of professional duties and shall state the grounds on which they are based. To determine the seriousness of the breach of professional duties and the disciplinary measure to be imposed, account shall be taken in particular of:
– the nature of the breach of professional duties and the circumstances in which it occurred,
– the extent to which the misconduct adversely affects the ECB’s integrity, reputation or interests,
– the extent to which the misconduct involves intentional actions or negligence,
– the motives of the member of staff’s breach of professional duties,
– the member of staff’s grade and seniority,
– the degree of the member of staff’s responsibility,
– whether the breach of professional duties involves repeated action or behaviour,
– the conduct of the member of staff throughout the course of their career.
Disciplinary measures shall be adopted in accordance with the procedure laid down in the Staff Rules. The said procedure shall ensure that no member of staff … to whom [the] Conditions of Employment apply may be subjected to a disciplinary measure without first being offered an opportunity to reply to the relevant charges. …
46. The Executive Board may suspend a member of staff against whom an allegation of serious breach of professional duties has been made immediately after they have been heard, save in exceptional circumstances.
…’
4. The ECB Staff Rules
6. The ECB Staff Rules, adopted by the Executive Board, in the version applicable to the present dispute (‘the Staff Rules’), provide in Part 8.3 thereof, entitled ‘Disciplinary procedure’, as follows:
‘The provisions of Articles 43, 44 and 45 of the Conditions of Employment are applied as follows:
8.3.1 Breach of professional duties shall mean a breach of the obligations laid down in the [Protocol on the] Statute of the [ESCB] and of the [ECB], the Conditions of Employment, the Staff Rules, the Code of Conduct of the [ECB] or any other legal act or internal standard or rule applicable to members of staff.
8.3.2 On the basis of a report, which shall state the facts and the circumstances of the breach of professional duties, including any aggravating or extenuating circumstances and the underlying evidence, and the results of the hearing of the member of staff concerned after they have been notified of all evidence in the files, the Executive Board may decide any of the following:
–
to initiate disciplinary proceedings for breach of professional duties,
…
The member of staff subject to the disciplinary proceedings … shall be informed in writing of the initiation of the disciplinary proceedings and of the allegations made against [him].
…
8.3.4 The imposition of disciplinary measures other than a written warning or a written reprimand shall require the involvement of the Disciplinary Committee.
8.3.5 The Disciplinary Committee shall be composed of five members as follows:
(a) a non-voting Chair appointed by the Executive Board from a list composed of former high-ranking officials of another Union institution or senior members of a European international organisation. …;
(b) the Director‑General Human Resources, Budget and Organisation [of the ECB] or their Deputy Director‑General;
(c) two members of staff appointed by the Executive Board;
(d) a staff representative appointed by the Executive Board from a list ranking three names of members of staff submitted by the Staff Committee and the recognised trade unions. …
The members of the Disciplinary Committee appointed according to paragraphs (c) and (d) may not belong to the business area of the member of staff subject to disciplinary proceedings. …
…
8.3.6 Subject to the approval of the Chair, a member of the Disciplinary Committee may be excused from duty for legitimate reasons and shall withdraw if a conflict of interest exists. Their alternate shall replace them.
8.3.7 The deliberations and proceedings of the Disciplinary Committee shall be treated as personal and confidential in accordance with the ECB’s internal rules on confidentiality. The members of the Disciplinary Committee shall act in their personal capacity and shall be completely independent in the performance of their duties.
8.3.8 The Chair of the Disciplinary Committee shall ensure implementation of decisions taken during the proceedings of the Disciplinary Committee and shall bring all relevant information and documents to the attention of each of its members.
…
8.3.10	The member of staff [against whom disciplinary proceedings are being taken] shall be informed of the composition of the Disciplinary Committee and may object to one of the members of the Disciplinary Committee within the following five days.
8.3.11 The report referred to in Article 8.3.2 shall be communicated to the member of staff. On receipt of the report, they shall have the right to obtain their complete personal file and take copies of all documents relevant to the proceedings, including exonerating evidence. They shall have not less than 15 calendar days from receipt of the report to prepare their defence.
8.3.12 The Disciplinary Committee shall hear the member of staff, who may present observations in writing or orally and be assisted by a person of their choice. …
…
8.3.15 The Disciplinary Committee shall, by majority vote, deliver a final opinion signed by all members on whether the facts are established, whether they constitute a breach of professional duties and on any disciplinary measure. Any member of the Disciplinary Committee may attach a divergent view to the opinion. The Disciplinary Committee shall transmit its final opinion to the Executive Board and to the member of staff within three months from the notification of the initiation of the disciplinary proceedings to the member of staff. If the Disciplinary Committee performs complementary investigations, the time-limit shall be five months. It shall in any case be commensurate to the complexity of the [disciplinary] case.
…
8.3.16 The member of staff may submit their own observations to the Executive Board within 15 days from the transmission of the Disciplinary Committee’s final reasoned opinion.
8.3.17 The Executive Board shall decide on the most appropriate disciplinary measure within one month from the receipt of the Disciplinary Committee’s final reasoned opinion and of the observations of the member of staff. It shall give due consideration to the Disciplinary Committee’s recommendations but shall not be bound by them.
…’
5. Circular No 1/2006
7. The rules governing ECB internal administrative inquiries are set out in Administrative Circular No 1/2006, adopted by the Executive Board on 21 March 2006 (‘Circular No 1/2006’). Article 2(1) of that circular provides that the purpose of an administrative inquiry is to clarify the facts but that it is without prejudice to any disciplinary procedure.
8. Article 6(14) of Circular 1/2006 states that, at the end of the administrative inquiry, the person conducting an inquiry or the panel (‘the Panel’ or ‘the Inquiry Panel’) must submit a reasoned report to the Lead Inquirer and, where the Lead Inquirer is a senior manager, the latter must inform the Executive Board thereof.
9. Article 7(3) of Circular 1/2006 provides as follows:
‘ECB employees who are the subject of the administrative inquiry shall be:
(a) informed by the person conducting the inquiry, or the [P]anel, prior to the submission of the reasoned report, of the content of the alleged breach of professional duties and granted access to documents related to the allegations made against them which disclose facts important for the exercise of their rights of defence; and
(b) granted an opportunity to present their view and add their comments on the conclusions referring to them to ensure the completeness of the inquiry file; the latter shall be included in the reasoned report; and
(c) allowed to seek the assistance of a staff representative.
ECB employees or other individuals involved in the administrative inquiry shall also be granted access to all facts which refer to their person, as well as personal data in order to ensure their completeness and accuracy, and shall have the right to obtain from the [L]ead [I]nquirer[, in respect of administrative inquiries,] acting as the controller the rectification without delay of any such inaccurate or incomplete personal references.’
6. The Code of Conduct of the ECB
10. The relevant provisions of the Code of Conduct of the ECB, laid down in accordance with Article 11.3 of the Rules of Procedure of the Bank (OJ 2001 C 76, p. 12) (‘the Code of Conduct’), read as follows:
‘…
2. …
The [ECB staff members to whom this Code of Conduct is addressed] are expected to act with exclusive loyalty to the ECB, honestly, independently, impartially, with discretion and without regard to self-interest or national interests, to subscribe to high standards of professional ethics, and to avoid any situation liable to give rise to a conflict of interest.
…
2.2 Diligence, efficiency, responsibility
The addressees [of this Code of Conduct] are expected always to carry out diligently, efficiently and to the best of their abilities the responsibilities and the duties entrusted to them. They are expected to be mindful of the importance of their duties and responsibilities, to take into account the expectations of the public concerning their moral behaviour, to conduct themselves in a way that maintains and boosts the public’s trust in the ECB, and to contribute to the efficiency of the administration of the ECB.
…
4.1 …
For the addressees [of this Code of Conduct], loyalty implies not only the fulfilment of the tasks entrusted to them by their superiors and compliance with the latters’ instructions and with the applicable reporting lines, but also assistance, advice, openness and transparency in all dealings with superiors and colleagues. In particular, [ECB staff] should keep other concerned colleagues informed with regard to work in progress and enable them to contribute to it. Withholding information that may affect the conduct of business from superiors or colleagues, particularly in order to gain a personal advantage, providing false, inaccurate or exaggerated information, refusing to cooperate with colleagues or demonstrating any obstructive behaviour would be contrary to the form of loyalty expected of [ECB staff].
…
4.2 …
[ECB staff] are expected to respect and protect the ECB’s property and not to allow third parties to make use of the ECB’s services and/or facilities. All equipment and facilities, whatever their nature, are provided to [members of staff] by the ECB for official use only, unless private use is permitted either according to relevant internal rules or practices or on a discretionary basis.
[ECB staff] are also expected to take all reasonable and appropriate measures to limit the costs and expenses of the ECB wherever possible, so that the available resources can be employed in the most efficient manner.
5. Implementation
5.1 Role of the [members of staff of the ECB to whom this Code of Conduct is addressed]
Proper implementation of this Code [of Conduct] depends first and foremost on the professionalism, conscience and common sense of [its] addressees.
In addition to the vigilance which addressees [of this Code of Conduct] in positions of authority are expected to demonstrate, they are also expected to behave in an exemplary fashion with regard to the adherence to the principles and rules laid down in this Code [of Conduct].
...’
7. The Business Practices Handbook
11. Chapter 7 of the Business Practices Handbook (‘Business Practices Handbook’) provides that, so far as concerns centralised budget centres, the tasks and associated funds allocated to a central budget are related to services rendered to other parts of the ECB by the division in charge of that centralised budget. Budget Centre Managers are responsible and must submit accounts for all the activities of their respective budget centre. They are responsible for managing their funds, within the limits of their approved budget and in line with the appropriate rules and guidelines. They are expected to ensure that the expenditure is booked in the correct financial account. Pursuant to Chapter 8 of the Business Practices Handbook, ECB staff are to apply the procurement framework and best practices to all procurement activities. They must strive to obtain the best possible value for money, taking into account the total cost of ownership, and consider not only current needs, but also potential future needs. Article 8.1.1 of the Business Practices Handbook provides that a Budget Centre Manager is responsible for the good performance and successful outcome of his procurements, that is to say, he must achieve value for money and comply with the ECB’s standards and Code of Conduct in relation to the procurement framework.
Factual background to the dispute
1. Initial events, also referred to in Joined Cases F‑7/11 and F‑60/11
12. The applicant entered the employment of the ECB on 1 June 2003 and, following an internal recruitment procedure, he was appointed with effect from 1 June 2007 to the post of Head of Division in the Office Services Division within the Administration Directorate‑General (DG), a division renamed as from 19 February 2008 the ‘Administrative Services Division’. The tasks of that division were, inter alia, to provide the central mail, switchboard and copying services; to manage the out-tasking of cleaning, in-house catering, hotel block reservation, interpretation and business travel services; to provide material organisation for meetings held at the ECB; to provide a driving and transportation service; to receive deliveries; to manage the storeroom; to provide furniture and to distribute goods internally.
13. In his capacity as Head of a division with horizontal responsibility for supplying equipment and services, with the exception nevertheless of IT equipment, to the other divisions of the Bank, the applicant was responsible for a centralised budget. He was assisted in his duties by a Deputy Head of Division (‘the Deputy Head of Division’).
14. Pursuant to the Executive Board-approved procurement policy of the ECB, the ‘“responsibility for provision and procurement is centralised, [inter alia, for all] centralised IT investments (including hardware and software)”, and entrusted to [the Infrastructure and Operations division] of [DG Information Systems].’
15. On 26 February 2010, the Executive Board decided on the basis of Circular No 1/2006 to open an administrative inquiry with the aim of clarifying ‘all facts and circumstances related to the purchase of selected items and the use of selected ECB assets by the staff of [the Administrative Services Division]’ and ‘all facts and circumstances in relation to a possible breach of professional duties by members of staff in relation to such purchase/use’ (‘the initial administrative inquiry’). The decision was also made not to inform the staff members concerned by the inquiry immediately, so as not to harm the in vestigation. By the same decision of 26 February 2010, the Director of the Directorate Internal Audit was appointed as the Lead Inquirer and an Inquiry Panel, composed of four members of staff of the ECB, was established.
16. On 26 March 2010, the applicant was interviewed by the Panel regarding the purchase by the Administrative Services Division of three different categories of items, namely, (i) brand X laptop computers; (ii) other types of laptop computers and (iii) E-book readers. He was informed at that hearing that, pursuant to Article 7(1) of Circular No 1/2006, he was the subject of an administrative inquiry within the meaning of Article 2(1) of that circular. Draft minutes of the hearing were sent to him on 22 April 2010 to allow him an opportunity to submit comments in this respect, which he did on 10 May 2010.
17. By decision of 6 April 2010, taking effect on the following day, the Executive Board suspended the applicant on full basic salary for the duration of the internal administrative inquiry (‘the decision of 6 April 2010’). That decision stated that it was based, in particular, on unrest within the Administrative Services Division and on the need to facilitate the proper conduct of the initial administrative inquiry and on the status update report on the Panel’s investigative work (‘the investigation status report dated 6 April 2010’), communicated on the same date to the Executive Board. On 3 June 2010, the decision of 6 April 2010 was challenged by the applicant, who brought a special appeal on the basis of Article 41 of the Conditions of Employment and Article 8.1.6 of the Staff Rules.
18. In response to a request from the Inquiry Panel, the applicant asked one his colleagues to return to the Bank a number of items which belonged to the Bank and which the applicant had in his possession outside ECB premises. That colleague returned those items to the ECB on 22 July 2010. They included three laptop computers, one E-book reader, one car navigation system, two cameras and one hand-held projector.
19. In addition, by letter of 22 July 2010, the applicant informed the Inquiry Panel that he would not be able to attend the hearing scheduled for that date on medical grounds. However, in that letter he provided detailed responses to the questions asked by the Panel regarding the purchases made by the Administrative Services Division between 2007 and 2010.
20. In this respect, he claimed, inter alia, that many of the purchases at issue had been made for testing and piloting purchases. He also explained that the purchase of computers, ‘MacBook’ laptop computers and other IT equipment was for the purposes of setting up a centre for visitors participating in meetings at the ECB, where they could read their e-mails, check flight information and check in to their flight online. Other equipment was intended for the lounges used by ECB drivers between their driving tasks, to provide them with activities, in particular during long waiting periods in the evenings. The Administrative Services Division thus bought video games consoles (Wii). The car navigation systems were, for their part, according to the applicant, intended for the long journeys made by the drivers in Germany and across Europe. The mobile telephones were purchased to be on loan to members of staff whom the Bank had not equipped with a permanent mobile telephone, or to replace the faulty telephones provided by DG Information Systems. The purchase of ‘BlackBerry’ mobile phones and associated equipment was also explained by the replacement of defective ‘BlackBerry’ mobile phones provided to the Administrative Services Division by DG Information Systems. The applicant had ordered cordless keyboards for the purpose of equipping meeting rooms.
21. Further in his letter to the Panel of 22 July 2010, the applicant also put forward his case regarding the purchase of five E-book readers, stating that they had been purchased to pilot whether, in the future, such equipment could or should be purchased by the Bank to be distributed as gifts to its staff. The applicant also explained that, since he was continually reading professional literature, he always carried his E-book reader with him to be able to read in the train or while travelling on business.
22. So far as concerns the cameras purchased by the Administrative Services Division, they were to be used to take high-quality photographs of the objects in the supply catalogue of that division. Other audio and video equipment was purchased to make presentations in meetings. Laptop bags were also purchased, according to the applicant, to enable staff in the Administrative Services Division to transport their laptop computers and documents more easily. The electronic photo frames and SD (Secure Digital) camera memory cards were bought to be used as small tokens of appreciation for staff in the Administrative Services Division on an as-needed basis.
23. On 26 July 2010, the European Anti-Fraud Office (OLAF) informed the ECB of its decision, taken on 1 July 2010, to initiate an investigation. The opening of that investigation brought to a close the initial administrative inquiry, in accordance with Regulation (EC) No 1073/1999 of the European Parliament and of the Council of 25 May 1999 concerning investigations conducted by OLAF (OJ 1999 L 136, p. 1). Since the Panel’s inquiry dated 26 July 2010 was not finalised, no definitive ‘reasoned report setting out the facts and circumstances of the case and the existence or absence of sufficient evidence of the alleged breach’, within the meaning of Article 8.3.2 of the Staff Rules and Article 6.14 of Circular No 1/2006, was submitted by the Inquiry Panel to the Lead Inquirer.
24. By decision of the Executive Board of 3 August 2010 adjudicating on the special appeal brought by the applicant, the decision of 6 April 2010 was annulled and the applicant was awarded symbolic compensation of EUR 1.
25. By decision of 4 August 2010, notified on the same date, the Executive Board suspended the applicant as of 5 August 2010 on full basic pay (‘the decision of 4 August 2010’). That decision stated that it was based on the existence of allegations which, if established, would constitute a serious breach by the applicant of his professional duty, in view of the damage thereby caused to the reputation of the ECB and the applicant’s high-ranking position within the institution, and on the need to facilitate the proper conduct of the OLAF investigation.
26. In the letter to the applicant accompanying the decision of 4 August 2010, signed, inter alia, by the Director‑General of DG Human Resources, Budget and Organisation (‘DG Human Resources’) it was pointed out in particular that the applicant had refused on several occasions to attend a hearing before the adoption of that decision. Referring to the case-law on the hearing of the person concerned after the adoption of a decision to suspend him from his duties, that letter invited the applicant to attend a hearing on 11 August 2010 at 11.00 or at any earlier date at his convenience or failing that, to present his comments on the decision of 4 August 2010 in writing by 3 September 2010 at the latest.
27. By letter of 17 August 2010 the Director‑General of DG Human Resources informed the applicant that the allegations made against him and communicated to the Executive Board were the following:
‘…
[First, the a]llegations communicated to the Executive Board, as part of the [investigation status report] dated 6 April 2010, following an interview with [the applicant] on 26 March 2010, the minutes of which were sent [to the applicant] … and on which he provided written comments ... on 10 May 2010 [relating]:
(i) [to t]he purchase of [brand X] laptops, other laptops and E-book readers by [the Administrative Services Division];
(ii) [to the fact that t]he business reason, the use and the whereabouts of such items [was] uncertain.
[Second, the a]llegations communicated to the Executive Board, as part of the [investigation status report] dated 6 April 2010, which were again summarised and documented in the minutes of the hearing held on 14 July 2010, the draft of which was sent by letter to [the applicant] on 21 July 2010 [, namely:]
(i) a number of items such as [brand X] laptops, other types of laptop/desktops and E-book readers [had] been purchased from one of the two centralised budget centres for which [the Administrative Services Division] carries responsibility and the current location of the majority of those items [was] unknown;
(ii) [the applicant had] initiated, authorised or permitted, in his capacity as Head of [the Administrative Services Division], the purchase of those items;
(iii) 	[t]he business reasons underlying those purchases [were] questionable also with regard to the role and responsibilities of [the Administrative Services Division] as outlined in the Functions Paper [of the Division, approved by the Executive Board];
(iv) [the applicant], as responsible Head of [the Administrative Services Division, was unable to] give a reasonable explanation of the whereabouts of the majority of the items.
[Third, the a]llegations communicated to the Executive Board, as part of the investigation status report dated 19 July 2010 [, namely]:
(i) 127 purchases by [the Administrative Services Division] of items which [could] be subdivided into 13 different categories, the most prominent categories being: (i) [brand X laptop] computers and related accessories; (ii) other computers and related accessories; (iii) other IT hard[ware] and software; (iv) navigation systems and (v) mobile phones. [On 17 August 2010], the … location of only a limited number of the 127 items [had] been identified; and
(ii) [the u]ncertainties over the business purpose underlying the purchase of those items, and any project or task to which they related as well as the relationship between the respective project or task and the functional responsibilities of [the Administrative Services Division].
...’
28. By letter of 10 August 2010, the applicant requested the ECB for access to a number of documents. By letter of 17 August 2010, the ECB refused to grant that request, referring in that regard to its position stated in its previous letters of 28 April, 21 May and 5 July 2010 and in that of 4 August 2010 accompanying the decision of 4 August 2010. In an annex to a letter of 17 August 2010, the ECB repeated the allegations against the applicant on which the decision of 4 August 2010 was based.
29. By letters of 3 and 10 September 2010, the applicant set out his comments on the decision of 4 August 2010. He stressed, in particular, his qualities as Head of Division (manager), in particular the fact that he had enabled the ECB to save EUR three million in connection with a contract for an IT system and its related applications and products, intended for data processing and known as ‘SAP’.
30. As regards the purchases at issue, the applicant claimed that they had been made in accordance with the rules and standards in force at the ECB and met business needs connected with the functions of the Administrative Services Division.
31. As regards the purchase of brand X laptops, the applicant stated that they had been purchased to meet the needs of the ECB visitor centre and that that brand of laptop had been chosen, besides its aesthetic aspects, on account of its greater technical reliability with regard to wireless Internet use than the brand Y laptops normally used in the ECB.
32. The Executive Board then requested the Inquiry Panel to prepare, in response to the applicant’s arguments, a note repeating its observations, findings and the results of the hearings/interviews held on 26 July 2010 and prior to this date.
33. By letter of 30 September 2010, the applicant brought a special appeal against the decision of 4 August 2010. That appeal was dismissed by the decision of the ECB Executive Board of 23 November 2010.
34. Also on 23 November 2010, the Executive Board, after reviewing the applicant’s position following his written comments, adopted a new decision confirming the decision of 4 August 2010. That new decision stated that it had been taken after the Executive Board had requested the Inquiry Panel to prepare a report containing its observations on the comments made by the applicant. The grounds for the suspension of the applicant were, first, the finding by the Executive Board that a number of comments submitted by the applicant did not correspond with some of the observations and findings of the Panel; secondly, the failure of the applicant to provide explanations for the 127 items in respect of which he was accused of having seriously breached his professional duty, his comments not being such as to render those accusations sufficiently improbable or manifestly unfounded; and, thirdly, OLAF’s ongoing investigation in connection with its inquiry. The extracts from the provisional findings of the Panel on which the Executive Board stated that it had relied were reproduced in the letter notifying that decision.
35. In January 2011, the ECB informed the applicant of its decision to initiate the disability procedure with regard to him.
36. By decision of 15 March 2011, the ECB Executive Board rejected the special appeal brought by the applicant, on 21 January 2011, against the decision of 23 November 2010 confirming that of 4 August 2010.
37. On 16 March 2011, the Director‑General of DG Human Resources informed the applicant that, from 28 March 2011, he would no longer receive his salary but would receive an equivalent disability allowance.
38. On 22 March 2011, the applicant was invited by OLAF to attend a hearing scheduled for 12 and 13 May 2011.
39. By applications received at the Tribunal Registry on 2 February 2011 and 25 May 2011 respectively, the applicant brought two actions seeking, as to the first, registered as case number F‑7/11, annulment of the decision of 4 August 2010 and, as to the second, registered as case number F‑60/11, annulment of the decision of 23 November 2010 confirming that of 4 August 2010, that is to say, the two decisions by which the ECB had suspended him from his duties.
40. By judgment of 13 December 2012 in AX
v ECB
(F‑7/11 and F‑60/11, EU:F:2012:195), the Tribunal dismissed both actions and ordered the applicant to pay the costs.
2. The Panel’s activity report
41. It is apparent from the file that, although the Inquiry Panel had not finished its work on 26 July 2010 when the notification from OLAF that that institution had initiated an investigation divested it of the case, it nevertheless recorded its findings up to that date in the form of an activity report (‘the Panel’s activity report’), dated 15 March 2011. That report was intended to record the ‘interim assessment made by the Inquiry Panel as of 26 July 2010 in relation to the business reason underlying the purchase of each of the categories of questionable items, as well as the consistency of the explanation received’.
42. The Panel’s activity report was communicated to DG Human Resources a year later, on 22 March 2012, by the Lead Inquirer, namely the Director of Internal Audit. The communication of the report was explained by the fact that it ‘contain[ed] information that [was] not reflected in the OLAF final case report [as referred to in paragraph 51 below] and [which might] constitute further elements, including potentially aggravating or extenuating circumstances, that [DG Human Resources could] take into account when deciding whether or not to initiate disciplinary proceedings’. In addition, the Director of Internal Audit stated that the Panel’s activity report ‘[was] merely a summary reflection of all the observations and interview results until 26 July 2010, and that it must be strictly distinguished from a “reasoned report setting out the facts and circumstances of the case and the existence or absence of sufficient evidence of the alleged breach”’, that is to say, a report within the meaning of Article 8.3.2 of the Staff Rules and Article 6(14) of Circular No 1/2006.
3. The OLAF report
The conduct of the investigation
43. OLAF, in the course of its investigation, requested information from the ECB by letter of 29 July 2010. It was furnished with that information in a letter of 6 August 2010. The OLAF investigation team also carried out an on-site visit from 20 to 24 September 2010, during which it conducted interviews with 12 members of ECB staff as ‘witnesses’. On 19 November 2010, OLAF also interviewed another member of staff of the Bank.
44. On 23 March 2011, the members of the Inquiry Panel visited the premises of OLAF and, on that occasion, shared their observations on each of the categories of items purchased by the Administrative Services Division, presented their interim assessment of the facts as at 26 July 2010 and answered OLAF’s questions in that regard.
45. It is apparent from the file that the Inquiry Panel thus provided assistance in the investigation conducted by OLAF. In connection with that assistance, OLAF requested the ECB, by letter of 29 March 2011, for a copy of the Panel’s activity report, which the latter had mentioned in one of its responses to OLAF’s requests for information.
46. On 30 March 2011, the Director of the Internal Audit Directorate, in his capacity as Lead Inquirer, forwarded the Panel’s activity report to OLAF, drawing to its attention ‘the fact that [that] report exclusively reflect[ed] the Inquiry Panel’s activities as per 26 July 2010, [that is,] the date when the ECB was notified by OLAF of the opening of an … investigation into the case, thus bringing the ECB’s [initial] administrative inquiry effectively to an end. Consequently, the key observations and interim assessments by the Inquiry Panel on each of the 13 categories of questionable purchases performed by the … Administrative Services [Division were not to] be construed as any form of final conclusions on any such category or on any other element of [the] case.’
47. On account of the applicant not being available, OLAF asked him to provide observations or comments on the summary of the allegations against him by 31 August 2011 at the latest and also put several questions to him.
48. On 30 August 2011, the ECB forwarded to the applicant’s lawyer a number of documents, in full or in part only, requested by the applicant’s lawyer on 26 August 2011. By letter of 30 August 2011 from his lawyer, the applicant answered the three main questions put to him by OLAF in a letter of 13 July 2011 and submitted his comments on the business reasons underlying the purchases at issue and on their connection with the duties and responsibilities of the Administrative Services Division directed by the applicant.
49. As regards the list of the purchases at issue made by the Administrative Services Division, the applicant pointed out to OLAF that the Inquiry Panel had already invited him, on 29 June 2010, to submit observations in that regard. He stated that he considered there to be nothing wrong with bringing equipment belonging to the ECB home with him since that allowed him to finalise its configuration and set‑up, while saving the department time. He maintained that he had never ordered the purchase of goods on the Bank’s budget for his personal or private use and that, in any event, he and his family had always been well-equipped, at their own expense, with IT and photographic equipment. In his reply to OLAF, he also asserted that he had never given instructions for certain budget headings of the Administrative Services Division to be used for the purchases in question, since the Deputy Head of Division had responsibility for specifically determining the appropriate budget heading according to the purchase concerned.
50. After identifying the member of staff having approved approximately one third of the purchases at issue, namely the Deputy Head of Division, OLAF heard that member of staff on 13 October 2011.
The findings in the OLAF report
51. At the end of its investigation, OLAF adopted a final report in which it recommended, so far as the applicant was concerned, that the investigation be closed with disciplinary follow-up (‘the OLAF report’). That report, accompanied by recommendations to the ECB and drawn up on 8 November 2011, was forwarded to the Bank on 27 January 2012. The applicant for his part was informed by OLAF of the closure of that office’s investigation on 23 January 2012.
52. It is apparent from the OLAF report that a member of staff of the ECB, who has asked to remain anonymous, (‘the whistleblower’) revealed the existence of possible irregularities committed within the Administrative Services Division. Those irregularities were connected with the alleged purchase by the applicant, in 2010, of two car navigation systems even though all the ECB’s service cars were already equipped with such a system as standard, and with other purchases: several LED projectors, three cameras, one of which was of professional quality, and numerous laptops and accessories. The whistleblower mentioned that he had the impression that the applicant, who allegedly had significant financial difficulties, was selling for profit equipment bought out of his department’s funds.
53. So far as concerns the purchase of brand X laptop computers, not used at the ECB, and related accessories, OLAF observed that the purchase of such IT products was not within the remit of the Administrative Services Division. Even if reference had been made to a project to equip meeting rooms in one of the ECB buildings (Eurotower) with a wireless connection, OLAF found that that project fell within the remit of DG Information Systems and that no laptop computer had been purchased in connection with that project. In any event, OLAF considered that the fact that the laptop computers at issue had been purchased by the applicant well before that project was launched cast further doubt on whether those purchases were appropriate. OLAF thus concluded that there was no valid business reason to explain the purchase of that category of goods.
54. As regards the purchase of electronic photo frames and E-book readers, OLAF also concluded that there was no business reason to warrant such purchases, which also did not fall within the remit of the Administrative Services Division.
55. Likewise, so far as concerns the purchase of ‘[o]ther computers and related accessories’, OLAF observed that such purchases did not fall within the remit of the Administrative Services Division and that the justification relied on by the applicant and the Deputy Head of Division, namely teleworking, business continuity and loans to Bank staff for meetings and presentations, contradicted the statements of the witnesses which it had heard. OLAF thus concluded that there was no business reason to warrant those purchases.
56. As regards the purchase of car navigation systems, OLAF found that the justification relied on by the applicant, namely that they were to meet the needs of ECB drivers for their long journeys in Germany and across Europe, had been clearly contradicted by the statements of the drivers themselves and those of the Deputy Head of Division, according to which the Bank’s service cars were already equipped with integrated navigation systems as standard. There was therefore, according to OLAF, no valid business reason for those purchases.
57. So far as concerns the purchase of other computers and accessories, OLAF found that those purchases ought to have been centralised at the level of DG Information Systems and that they were not warranted from the point of view of the business requirements of the Administrative Services Division.
58. OLAF furthermore considered that the purchase, in the period 2007/2010, of twelve BlackBerry telephones and other mobile telephones and the conclusion of mobile telephone contracts was not warranted by business reasons and that those purchases of goods and services did not fall within the remit of the Administrative Services Division.
59. So far as concerns the purchase of four digital cameras, in 2007 and 2010, OLAF rejected the justification put forward by the applicant that the cameras in question were used for quality assurance and for its online catalogue. The explanations provided by the applicant to justify bringing two of those cameras home with him, that is, the need to set them up, charge them and read their manuals, were rejected by OLAF, in particular because the applicant had not brought the manuals home with the cameras.
60. So far as concerns the purchase of printers, OLAF considered that, should these have been needed by the Administrative Services Division, that division should have procured them through DG Information Systems. OLAF reached the same finding as regards the purchase of the Logitech brand products.
61. As regards the purchase of a television, screens and projectors, OLAF conceded that the purchase of a television and a screen might have been warranted for the needs of the ECB’s drivers. On the other hand, OLAF could not see any valid justification for the purchase of the projectors and screens allegedly intended for presentations in offices and meeting rooms.
62. In respect of the purchase of games consoles and software, in particular a software programme called ‘Body for LIFE companion’, for planning daily sports exercises, and of a game bearing the logo of an American football team, OLAF observed that the ECB drivers denied having had access to that leisure equipment, contrary to what had been stated by the applicant to justify those purchases.
63. OLAF concluded that between October 2007 and March 2010 the Administrative Services Division had purchased 127 IT and IT-related products, representing in total 411 individual items, charging a total of EUR 65 000 to the ‘Administrative Services Support …’ budget centre of the centralised budget of the Administrative Services Division in this respect. The applicant had approved the orders for two thirds of that expenditure while the remaining third had been approved by the Deputy Head of Division.
64. OLAF noted that the ECB had been able to retrieve or locate 95 of the items in question, while the location of the remaining 316 items, of an estimated value of EUR 40 674.74, was still unknown. Since none of those items had been inventoried in the ‘Equipment Logistics System’ (‘the ELS system’) designed for that purpose or in any other inventory system of the ECB, it was difficult to determine their whereabouts. However, OLAF stated that it had not found any evidence to corroborate the suspicion that the applicant had misappropriated the items in question or that those items had been stolen or subject to embezzlement by any member of staff of the ECB. Thus, even though the purchases at issue demonstrated a breach of professional duty, no judicial follow-up was recommended by OLAF.
65. Besides the conclusions in its investigation, OLAF also made several recommendations to the ECB, namely (i) that it review the financial circuits within the Administrative Services Division to avoid countersigning by subordinate staff members, given that this did not have any added value for the control of the person signing the order on account of the subordinate’s obvious lack of independence; (ii) that it streamline the centralised budget centres similar to that of the Administrative Services Division in order to enhance the transparency of the purchasing regime applied by that division; (iii) that it ensure that the procedures within the Administrative Services Division follow a strict application of the principle of budgetary specification and guarantee sound financial management; and (iv) that it review the generally weak internal control climate both within the Administrative Services Division and in the supervision of that division.
4. The disciplinary proceedings initiated under Article 8.3.2 of the Staff Rules
The opening of disciplinary proceedings and the Article 8.3.2 report
66. Following the OLAF report, the applicant was heard by the Head of the Human Resources Policies and Staff Relations Division of DG Human Resources and by two members of the Staff Relations Division, on the basis of Article 8.3.2 of the Staff Rules (‘the Commission of Inquiry’). By e-mail of 24 August 2012, the applicant sent the Commission of Inquiry a number of documents. After the applicant had set out his observations, on 18 October 2012, on the draft report sent to him on 26 September 2012, the ECB’s personnel directorate, on 19 November 2012, adopted the report as provided for in Article 8.3.2 of the Staff Rules, entitled ‘Report on a possible breach of duty …’ (‘the Article 8.3.2 report’).
67. The Article 8.3.2 report provides, inter alia, as follows:
‘...
This report has been prepared by DG [Human Resources] in accordance with Article 8.3.2. of the Staff Rules with a view to presenting the facts and the circumstances concerning a possible breach of professional duty by [the applicant] in relation to his involvement in and responsibility for purchases carried out by the Administrative Services Division.
[It] has been prepared on the basis of [i] the final OLAF report, [ii] information provided by [the Internal Audit Directorate] concerning the activities of the ... Inquiry Panel until 26 July [2010,] when the [initial] administrative inquiry was discontinued, [iii] information provided by [the applicant] and [iv] further administrative information available to DG [Human Resources].
…
Under [the applicant], [the Administrative Services Division] purchased 127 [IT and IT-related] products representing 411 individual items, for which the business reason may be questioned having regard to [that division’s] responsibilities.
…
Out of the 411 individual items purchased by [the Administrative Services Division] under [the applicant], the ECB has managed to retrieve or locate 95 of the items. The whereabouts of the remaining 316 items are unknown. The estimated value of these missing items is EUR 40 674.74.
Due to the fact that none of these items have been inventoried either in the [ELS system] or in any other inventory system at the ECB, the location of the ... [missing] items was made more difficult. According to [the applicant], it is not the fact that the items were not recorded in a system which makes it difficult to locate them. In his view, possible explanations ... are the followings: (i) the items are still somewhere in the ECB store rooms and were not found due to the inadequate inspection; however, in [the applicant]’s view, it is doubtful that this would be the case, as the people from [the Administrative Services Division] who placed the items in the store rooms would know exactly where the items were located, with or without [an inventory] system; (ii) the items were replaced by non-[Administrative Services Division] staff ([staff] from other divisions or external companies with access to the store rooms) to another place ... or (iii) the items were removed by one or more persons either with the purpose of trying to incriminate [the applicant] or for their own benefit.
...’
68. The Article 8.3.2 report also listed a series of aggravating and extenuating circumstances for the contested acts of the applicant.
69. By letter of 29 November 2012, the applicant was informed of the decision taken by the Executive Board on 27 November 2012 to initiate disciplinary proceedings and determining the composition of the Disciplinary Committee, formed of a former member of the Tribunal as Chair, four members of staff from various directorates general of the ECB and alternate members. The decision to initiate disciplinary proceedings expressly stated that it was based, not on the Panel’s activity report, but on the Article 8.3.2 report, a copy of which was forwarded in that context to the applicant.
70. The allegations against the applicant related to the fact that he had initiated, authorised or permitted, in his capacity as Head of the Administrative Services Division, the purchase of goods which were not within the remit of that division and/or for which the centralised budget of that division was not to be used; that he had not performed certain duties and tasks conscientiously and had not managed the Division’s funds so as to attain a maximum degree of effectiveness, efficiency and economy; and that, on several occasions, he had not behaved loyally towards colleagues or had not taken all reasonable and appropriate measures to limit wherever possible the costs and expenses of the ECB, in breach of Article 4(a) of the Conditions of Employment, the Code of Conduct, Articles 0.1.1, 0.4 and 0.5 of the Staff Rules and Chapters 7 and 8 of the Business Practices Handbook. The applicant was also criticised on the grounds, first, that a high number of items belonging to the ECB were outside the Bank’s premises and that he had not complied with the obligation to protect the Bank’s property and, secondly, that he was not able to explain the whereabouts of a high number of items purchased by the Administrative Services Division. He was also accused of having mismanaged the Division’s funds.
The Opinion of the Disciplinary Committee
71. By letter of 4 December 2012, the applicant objected to two members of the Disciplinary Committee and the alternate for one of those two members and requested full access to all the information and documents held by the Bank.
72. In this connection, the applicant sought from the Disciplinary Committee access to several documents, including the Panel’s activity report. Since it did not possess that document, the Disciplinary Committee requested the Internal Audit Directorate, on 11 December 2012, to supply it so that the Committee could assess its relevance for the applicant’s rights of the defence. The Panel’s activity report was forwarded by the ECB to the Disciplinary Committee and the latter, by letter from its Chair dated 11 January 2013, informed the applicant that, following an examination of the relevance of the document requested and its added value in relation to the documents already shared with the applicant, it was refusing to grant the request for communication of the Panel’s activity report. The Disciplinary Committee explained its position as follows:
‘… In addition, various other considerations, including with regard to the identity of third parties and the need to avoid undue delays [in the proceedings], were taken into account where appropriate. The Disciplinary Committee position is that, by the documents already provided [to the applicant], [his] right[s] of [the] defence ..., with regard in particular to the access [to documents] question, [are] fully guaranteed. In addition, the Disciplinary Committee finds that the Article 8.3.2 report contains no element which could only, or mainly, be proven by reference to documents other than those in [the applicant]’s possession.
...’
73. On the other hand, on 5 December 2012, the OLAF report was disclosed in its entirety to the applicant by the ECB.
74. The applicant presented written observations, including a ‘[n]ote in defence …’, to the Disciplinary Committee on 29 January 2013 and submitted a final, amended version of that note to that body after his hearing before it on 30 January 2013 (‘the note in defence’). The minutes of that hearing show that the applicant again challenged the ECB’s refusal to disclose certain documents. He argued in that regard that it was not for the Bank to assess which documents were relevant for the purposes of his defence and that, in his view, not all the information in the Article 8.3.2 report could be proved solely on the basis of the documents in his possession.
75. The applicant submitted, at his hearing by the Disciplinary Committee, that the amounts represented by the purchases at issue were relatively limited, formed only a small percentage of the budget for which he was responsible and were visible to and therefore could be monitored by the Accounting, Controlling and Internal Audit Services of the ECB. The applicant denied instructing his colleagues not to record the purchased equipment in the ELS system.
76. As regards his approach of rewarding staff in the Administrative Services Division by gifting them low-value items, the applicant maintained, in connection with the electronic photo frames, that he had stopped that practice as soon as his management informed him that it disapproved of it. He justified the fact that he had brought various items of equipment home by citing his tendency to work from home, while pointing out that one third of the items he had returned were books from the ECB library, that the second third consisted of standard equipment such as mobile telephones, laptop computers and backpacks, while the last third was equipment which he had brought home in order to configure it or to acquaint himself with it before giving instructions to staff in his division as regards its use.
77. The applicant also explained to the Disciplinary Committee that he had not purchased the goods at issue through a procurement procedure since their purchase value per unit was less than EUR 10 000. As regards the purchase of the E-book readers, he claimed that there was a focus on saving paper in the Administrative Services Division and that there was a plan to pilot, within that division, the possibility of using that equipment with the involvement of all of the Division’s staff, at all levels of the hierarchy.
78. As regards the purchase of workout software, supposedly to encourage weight loss by burning calories, the applicant explained that that software offering fitness exercises could be useful to keep the ECB’s drivers in shape. He confirmed that he had neither sought the opinion of the ECB’s medical service on its use nor checked whether that initiative duplicated the existing health programmes at the Bank. So far as concerns the car navigation systems, the applicant stated that several drivers had complained that some of the systems with which the ECB’s cars were equipped were obsolete and that a decision had therefore been taken to buy new, updated car navigation equipment, rather than updating the integrated navigation systems with which the ECB’s cars were equipped.
79. When asked whether he wished to return to work at the ECB, the applicant stated to the Disciplinary Committee that he would be prepared to return to work there, even if that might be awkward for him and for some other people.
80. The Disciplinary Committee adopted its Opinion on 5 April 2013 (‘the Opinion of the Disciplinary Committee’). As regards the proceedings conducted before it and access to documents, the Disciplinary Committee expressed the following view:
‘[T]he whole procedure was conducted in conformity with the applicable provisions and in full respect of [the applicant’s] fundamental rights. In particular, the Disciplinary Committee unanimously considers that the complaints mentioned in [point] 14 of [the applicant’s] opinion lack any substantiation and, concerning specifically the complaint of limited access to documents, stresses that, both before and after it was charged with the case, numerous and voluminous documents were given to [the applicant], so as to facilitate his defence. Additional documents would only unduly delay the procedure, and potentially negatively affect the interests of third parties, without representing added value for [the applicant’s] defence.’
81. The Disciplinary Committee grouped the breaches of professional duty of which the applicant was accused in three categories, as follows:
‘(i) [The applicant] initiated and/or authorised a significant number of purchases which were not [within] the remit of [the Administrative Services Division] and/or which did not comply with ECB policies in place. [The applicant] did not demonstrate a sound and constructive working relationship vis-à-vis DG [Information Systems] on certain occasions, [contravening] openly in some cases the DG [Information Systems] refusal for purchases [which he had envisaged] and thereby appearing more as a person who was in competition with DG [Information Systems]. He also deliberately disregarded the instructions of the Executive Board regarding the use of teleworking equipment. The [brand X] computers, the [“]pandemic[”] computers, the mobile phones and the contract with [a telephone operator supplying between July 2008 and April 2010 services amounting to EUR 17 162.49] may be mentioned in this respect.
(ii) [The applicant] initiated and/or authorised a significant number of purchases which were not justified by identified and documented business needs and/or for which the business case and feasibility of implementation had not been sufficiently demonstrated. Such purchases included the computers allegedly foreseen for the visitor … centre, the [“]pandemic[”] computers, the expensive digital camera and its expensive accessories, the E-book readers and the mini-projectors. These purchases caused … significant financial damage to the ECB.
(iii) [The applicant] did not put in place any system to track purchased goods nor did he instruct any [Administrative Services Division] staff to do so, thereby [risking the loss of the] items purchased ... The fact that [the applicant] had a high number of ECB items in his possession outside … ECB premises, without being able to provide a justification for this, aggravates [his lack of diligence in the] management of purchased goods.’
82. The Disciplinary Committee thus considered that the applicant had infringed Article 4(a) of the Conditions of Employment, the Code of Conduct, in particular Articles 2, 2.2, 4.1 and 4.2 thereof, and Chapters 7 and 8 of the Business Practices Handbook many times and over a long period, thereby deliberately causing significant financial damage to the Bank. The Disciplinary Committee took the view that ‘[t]he breaches of professional duty by [the applicant were] very serious and involved, to a certain extent, a deliberate disrespect for [the] ECB rules in place’, a fortiori
because they had been committed by a Head of Division, responsible for the protection of the ECB’s financial interests.
83. The Disciplinary Committee discussed whether such deliberate, continued and long lasting breaches of professional duty could justify dismissal as a disciplinary measure. In that regard, the Disciplinary Committee took the view that a factor to be considered was the external reputation of the ECB as an EU institution and guardian of EU tax-payers’ money and as a role model for an efficient and accountable administration, run by selfless agents. The majority of the Disciplinary Committee agreed that such a measure should be imposed if, in addition, it was found that the breaches of professional duty had been motivated also by furthering personal interest, which would irrevocably destroy the relationship of trust between the ECB and the applicant. In this connection, after discussion, the majority of the Disciplinary Committee did not consider themselves to be fully convinced that such a private interest ‘could be established[,] strictly speaking[,] without doubt’, in particular having regard to the findings and conclusions reached by OLAF.
84. Taking into account the extenuating circumstances mentioned in the Article 8.3.2 report, namely the internal control deficiencies within the Administrative Services Division before the applicant took up his post there; the peculiar structure of that division, with limited higher-level positions thereby placing greater responsibility on the managers of the Division, and the applicant’s very good track record, as attested to by his appraisal reports, the Disciplinary Committee recommended, as an appropriate disciplinary measure, demotion by two salary bands, that is a demotion in terms of salary returning the applicant to the salary level at which he had been before his promotion in 2007 to the post of Head of the Administrative Services Division.
5. The contested decision
85. By letter of 24 April 2013, the applicant submitted his observations on the Opinion of the Disciplinary Committee. On 16 May 2013, DG Human Resources referred to the Executive Board of the ECB a draft decision imposing a disciplinary measure in accordance with the Opinion of the Disciplinary Committee.
86. However, in its meeting of 21 May 2013, the Executive Board of the ECB decided to penalise the applicant by dismissing him from the Bank. It is apparent from the preparatory documents to the Executive Board’s decision that it considered that, by his breaches of his professional managerial duties, identified by the Disciplinary Committee albeit disputed by the applicant, the latter ‘had irreversibly impaired the relationship of trust necessary between the ECB’s appointing authority and its staff’.
87. By decision of 28 May 2013, the Executive Board of the ECB thus imposed on the applicant the disciplinary measure of dismissal with notice, provided for in Article 44(ii) of the Conditions of Employment (‘the contested decision’). In that decision, the ECB found to be an aggravating circumstance, in particular, the fact that ‘[the applicant] committed the breaches of professional duties in his position as a manager with a special duty of care for the reputation and financial interest of the ECB’, while pointing out in that connection that ‘the ECB bases its credibility as [a] European [Union] institution … on its … reputation as a role model for an efficient and accountable administration run by staff with impeccable integrity’.
88. By letter of 16 July 2013, the applicant’s lawyer asked the Executive Board of the ECB to confirm that the contested decision was based only on the documents listed in that decision, namely the OLAF report, the decision of 4 August 2010, the Article 8.3.2 report, the notification provided by the ECB to the German Public Prosecutor on 6 March 2013 of the alleged breaches by the applicant of his professional duty, the Opinion of the Disciplinary Committee, the minutes of the applicant’s hearing before the Disciplinary Committee and the written observations of the applicant submitted to the Disciplinary Committee on 29 January 2013. Were this not the case, the ECB was requested to provide counsel for the applicant with the other documents held by the Executive Board on which the latter had based its decision. The applicant’s lawyer also pointed out that, through her, the applicant had requested [the Director‑General of DG Human Resources] for a copy of the letter of 6 March 2013 sent by the ECB to the German Public Prosecutor.
89. By letter in reply of 16 September 2013, the Director‑General of DG Human Resources informed the applicant of the documents on which the Executive Board of the ECB had relied in order to adopt the contested decision. Those documents did not include either the Panel’s activity report or the document connected with the ECB’s notification to the German Public Prosecutor of 6 March 2013.
Forms of order sought and procedure
90. The applicant claims that the Tribunal should:
– annul the contested decision;
– as a consequence, fully reinstate the applicant in his duties with the appropriate publicity in order to restore his good name;
– in any case, award compensation for the non-material damage suffered by the applicant, evaluated ex aequo et bono at EUR 20 000;
– order the ECB to pay the costs.
91. The ECB essentially contends that the Tribunal should:
– declare the action unfounded;
– order the applicant to pay all of the costs.
92. In the reply, the applicant raised the issue of the possibility for the Tribunal, by means of a measure of organisation of procedure, to order the ECB to produce every document in connection with the exchanges which that institution had had with the German Public Prosecutor and with OLAF.
93. In the rejoinder, the ECB objected to that request, submitting that the Tribunal does not have jurisdiction to request documents which do not fall within the framework of the present proceedings and that, in fact, the applicant is seeking to use that measure of organisation of procedure solely to circumvent the rejection of his letter entitled ‘A[dministrative review]’, submitted on 29 November 2013 against the decision of 30 September 2013 rejecting such a request for access to ECB documents.
94. Furthermore, in addition to the rejoinder, the ECB produced a confidential version of the Panel’s activity report, intended solely for the Tribunal, so that the latter could see that that document did not contain any information other than that in the Article 8.3.2 report. The Bank also requested the Tribunal not to disclose that confidential version of the Panel’s activity report to the applicant.
95. By letter from the Registry dated 17 June 2014, the Tribunal asked the Bank, having regard to Article 44(2) of the version of the Rules of Procedure then in force, why the Panel’s activity report should be considered confidential. Specifically, the Bank was requested to explain why confidential treatment was appropriate for that document but not for the OLAF report and the Article 8.3.2 report, on the basis of which the ECB had decided to initiate disciplinary proceedings and which had been forwarded to the applicant in their entirety. In this connection, the ECB was to indicate to the Tribunal, in particular, which facts or information included in the Panel’s activity report were not found in the other two reports.
96. By letter of 30 June 2014, the ECB explained to the Tribunal that it had communicated all the confidential documents on which the Disciplinary Committee had relied to the applicant and that the other documents in its possession, which had not been used by the Executive Board, could therefore remain confidential. In any event, according to the Bank, all the relevant information contained in the Panel’s activity report had been incorporated into the Article 8.3.2 report. However, in order to protect the anonymity of the persons who had cooperated in the unfinished initial administrative inquiry, it was appropriate not to disclose the Panel’s activity report to the applicant.
97. On 23 October 2014, the Tribunal, by way of measures of organisation of procedure, put questions to the parties and requested the ECB to provide certain documents, including a non-confidential version of the Panel’s activity report. The parties duly complied with those measures of organisation of procedure and, subsequently, were each able to present observations on their respective responses.
98. Furthermore, by letter of 7 November 2014, the applicant, under Article 57 of the Rules of Procedure, submitted an offer to produce further evidence consisting mainly in correspondence which had taken place in the context of the return of his personal effects by the ECB. The ECB, in its observations of 24 November 2014 on that offer by the applicant, maintained essentially that those effects were returned on 30 May 2014 and left it to the Tribunal to decide whether the late presentation of that offer to produce further evidence was duly justified. In this connection, the Tribunal decided to accept that offer to produce further evidence.
Law
1. The claim seeking that the applicant be reinstated
99. It is important to point out that, in accordance with settled case-law, also applicable to actions brought under Article 36.2 of the Protocol on the Statute of the ESCB and of the ECB, it is not for the Tribunal to give directions to the institutions of the European Union (see judgments in Da Silva Pinto Branco v Court of Justice, F‑52/09, EU:F:2010:98, paragraph 31; and DH
v Parliament, F‑4/14, EU:F:2014:241, paragraph 41).
100. Consequently, the applicant’s claim seeking that he be reinstated in his post must be rejected at the outset as manifestly inadmissible.
2. The claim for annulment
101. In support of his claim for annulment, the applicant puts forward eight pleas in law, alleging, respectively:
– infringement of the rights of the defence, of Article 45 of the Conditions of Employment, of Article 8.3.11 of the Staff Rules and of Article 47 of the Charter of Fundamental Rights of the European Union, in that the ECB refused to grant him access to certain documents and/or information;
– the illegality of Article 8.3.5 of the Staff Rules having regard to the principle of impartiality and to Article 47 of the Charter;
– breach of the presumption of innocence, the principle of impartiality and of Articles 47 and 48 of the Charter;
– breach of the obligation of due diligence on account of a failure to observe the reasonable time principle;
– breach of the duty to state reasons;
– misuse of powers by the Executive Board and infringement of Article 8.3.17 of the Staff Rules;
– a manifest error of assessment and breach of the principle of proportionality;
– the illegality of Articles 44 and 45 of the Conditions of Employment and of Article 8.3 of the Staff Rules having regard to the freedom of association and the right to collective bargaining enshrined in Article 28 of the Charter.
102. First of all, for the purposes of addressing those pleas, the Tribunal notes that, pursuant to Article 9(c) of the Conditions of Employment, ‘[i]n interpreting the rights and obligations under the … Conditions of Employment, due regard shall be shown for the authoritative principles of the regulations, rules and case law which apply to the staff of the [EU] institutions’.
103. Therefore, inasmuch as the disciplinary procedure provided for in the body of rules applicable to ECB staff bears certain similarities to that provided for in the Staff Regulations of Officials of the European Union, applicable also to other members of staff of the European Union, resulting from Council Regulation (EEC, Euratom, ECSC) No 259/68 of 29 February 1968, as most recently amended by Regulation (EU, Euratom) No 1023/2013 of the European Parliament and of the Council of 22 October 2013 (‘the Staff Regulations’), the European Union judicature may, to that extent, apply by analogy, if necessary, the case-law developed in connection with the disciplinary procedure under the Staff Regulations.
The first plea, alleging infringement of the rights of the defence, of Article 45 of the Conditions of Employment, of Article 8.3.11 of the Staff Rules and of Article 47 of the Charter
Arguments of the parties
104. The applicant complains that the ECB, including the Disciplinary Committee, did not give him full access to all the information and documents available to the Bank, in particular to those exonerating him, which could have been useful for the purposes of his defence. In particular, the applicant submits, first, that access to the lists of purchases of non-standard equipment, IT equipment, software and technical consulting services, carried out in the period 2003/2010 by DG Information Systems, DG Administration, DG Human Resources and, lastly, by what is now the Internal Audit Directorate, was essential to allow him to exercise his rights of the defence. The same is true of the documents from the Internal Audit Directorate relating to the inquiries concerning the Deputy Head of Division.
105. Secondly, the applicant also criticises the ECB for not granting his request for access to ‘[a]ll Facility Management … [and] Organisational Development Project … documentation including … presentations, [and] Management Committee and Executive Board document[s] ...’ and ‘[a]ll [Communication Division] Organisational Development Project … documentation including … presentations [and] Management Committee and Executive Board document[s]’.
106. Thirdly, the applicant relies on the failure to communicate the Panel’s activity report to him, a report of whose existence he gradually became aware as the disciplinary proceedings progressed. The Article 8.3.2 report is partially based on that activity report and, in any event, in so far as the Disciplinary Committee familiarised itself with the activity report in order to respond to the applicant’s request of 4 December 2012 for access to that document, the activity report has become, at least from the date of that request for access made to the Disciplinary Committee, an integral part of his disciplinary file. Furthermore, since that Committee had familiarised itself with the Panel’s activity report in order to make a decision, on 11 January 2013, on the applicant’s request of 4 December 2012, it was bound to have been influenced by the contents of that activity report in the drafting of its Opinion. The applicant also submits that he was unable to fully understand the Article 8.3.2 report without having access to the Panel’s activity report and that the concern to protect the anonymity of certain witnesses should not take precedence over his rights of the defence. In his response of 6 November 2014 to the measures of organisation of procedure, the applicant nevertheless conceded that the issue was not really whether or not he was able to understand the Article 8.3.2 report, but rather whether he had been authorised to have access to all the documents available to the ECB.
107. Fourthly, the applicant draws attention to the fact that the Executive Board of the ECB had been informed, before adopting the contested decision, that the Internal Audit Directorate had notified the matter to the German Public Prosecut or and that the contested decision specifically mentioned that the case had been referred to the German judicial authorities. It can therefore be seen that that aspect was a major, if not the decisive, reason behind the Executive Board’s decision to dismiss the applicant rather than to demote him. In those circumstances, it was not open to the ECB to refuse the applicant access to the specific contents of that notification to the German Public Prosecutor, since it had been used by the ECB to further incriminate the applicant and to justify imposing a stricter disciplinary measure on him. The applicant also disputes the justification for notifying his case to the German judicial authorities, pointing out that OLAF had not recommended that there be any judicial follow-up to the file.
108. The applicant also denies, in connection with the refusal of the Disciplinary Committee of 11 January 2013 to grant him access to the Panel’s activity report, that the Disciplinary Committee could assess, in the place of the applicant, which documents might present added value for the purposes of his defence.
109. The ECB contends that the first plea should be rejected, maintaining that it gave the applicant access to all the documents on which the contested decision is based and that, in fact, the applicant is mistaken as to the scope of his rights in his belief that he is entitled to have access to any document he considers useful to his defence and that he can verify every item of information or document held within the Bank, even though the contested decision may not necessarily be based on that information or document.
110. As regards the Panel’s activity report, the ECB maintains that it was drawn up before the initiation of the disciplinary proceedings which led to the adoption of the contested decision, that it was never communicated to the ECB’s Executive Board since it is not part of the ‘full disciplinary file’ and that, in any event, the relevant information in that report was reproduced in the Article 8.3.2 report to which the applicant was granted unrestricted access, as indeed he was to the OLAF report. Since the applicant was able to exercise his rights of the defence so far as concerns the Article 8.3.2 report, there is no basis for claiming a further right of the defence as regards the Panel’s activity report as such, a fortiori
since the Article 8.3.2 report was the sole document on which the decision of whether or not to initiate disciplinary proceedings against the applicant was based. The fact that the Disciplinary Committee familiarised itself with the Panel’s activity report is merely a consequence of the applicant’s request for access to that report, but that does not mean that the Disciplinary Committee relied on that report for the purposes of drawing up its Opinion.
111. The notification to the German Public Prosecutor is a separate issue, namely that of whether the acts in question may be characterised as offences under German law, but that notification was not a decisive reason for the applicant’s dismissal. The Executive Board, in the contested decision, mentioned the notification by the Internal Audit Directorate to the German Public Prosecutor only in order to ‘make it very clear from the outset that [that issue was] a matter for the German judicial system to decide upon’, contrary to what the Opinion of the Disciplinary Committee might have implied. The Executive Board also indicated that that issue had no bearing on the breakdown of the relationship of trust referred to in recitals 12 to 14 of the contested decision. That is shown by the fact that, in the case of the Deputy Head of Division, the disciplinary decision concerning him also refers to notification to the German judicial authorities, yet without the ECB having decided to dismiss him.
Findings of the Tribunal
– General considerations
112. As a preliminary point, it is necessary to point out that Article 41(2)(b) of the Charter provides that every person has the right to have access to his file, while respecting the legitimate interests of confidentiality and of professional and business secrecy. Article 45 of the Conditions of Employment, for its part, provides that the disciplinary procedure must ensure that no member of staff may be subjected to a disciplinary measure without first being offered an opportunity to reply to the charges against him (judgments in X
v ECB, T‑333/99, EU:T:2001:251, paragraphs 176 and 177, and Afari
v ECB, T‑11/03, EU:T:2004:77, paragraph 50).
113. As regards the extent of the applicant’s right of access to the documents and evidence held in support of the Bank’s complaints on which the contested decision is based, it must be noted that, under Article 8.3.2 of the Staff Rules, the decision to initiate disciplinary proceedings is taken by the Executive Board after the person concerned has been notified of all evidence in the files and has been heard and, under Article 8.3.11 of the Staff Rules, ‘on receipt of the [Article 8.3.2] report [(the 19 December 2012 in the present case), the person concerned] shall have the right to obtain their complete personal file and take copies of all documents relevant to the proceedings, including exonerating evidence’.
114. Although those provisions applicable to the ECB thereby provide the member of staff subject to disciplinary proceedings with a right of access, in principle unrestricted, to the evidence in the disciplinary file, including evidence in his favour, they nevertheless do not provide for unrestricted access by that member of staff to any item of information or document held within the Bank or which may be reconstituted from existing documents or information available on those premises. The Staff Rules do not provide for the automatic communication to the applicant of that latter type of information or ‘reconstituted’ documents, which as a general rule are not considered part of the disciplinary file.
115. The Tribunal takes the view that the right of access to the disciplinary file, provided for by the body of rules applicable to ECB staff, satisfies the requirements set by EU law, in particular by Article 41(2)(b) of the Charter and the EU case-law on disciplinary proceedings. The adversarial nature of disciplinary proceedings such as those before the ECB’s Disciplinary Committee and the rights of the defence in such proceedings admittedly require that the applicant and, as appropriate, his lawyer, are able to familiarise themselves with all the facts on which the disciplinary decision was based in sufficient time to submit their observations. Observance of the rights of the defence requires not only that the person concerned be placed in a position in which he may effectively make known his views on the relevant circumstances, but also that he should at least be able to put his own case on the documents taken into account by the EU institution and which disclose facts important to the exercise of his rights of the defence (judgment in Kaufring and Others
v Commission, T‑186/97, T‑187/97, T‑190/97 to T‑192/97, T‑210/97, T‑211/97, T‑216/97 to T‑218/97, T‑279/97, T‑280/97, T‑293/97 and T‑147/99, EU:T:2001:133, paragraph 179). However, the requirement for the applicant to have access to the documents concerning him applies only to documents used in the disciplinary proceedings and/or in the administration’s final decision. Thus, for the purposes of the principle of the observance of the rights of the defence, the administration is not necessarily obliged to provide other documents (see, to that effect, judgment in N
v Commission, T‑273/94, EU:T:1997:71, paragraph 89).
116. The Tribunal also observes that, in the present case, the applicant had full access, during the disciplinary proceedings starting with the notification of the Article 8.3.2 report, both to that report and to the OLAF report and to a set of documents made available to him by the ECB in response to his multiple requests for access to documents.
117. It is in the light of the foregoing considerations that it is necessary to establish whether the documents and information which the ECB refused to disclose to the applicant and to which the present plea, alleging infringement of the rights of the defence, relates, were an integral part of the applicant’s disciplinary file and/or were used to substantiate the Opinion of the Disciplinary Committee and the contested decision.
– The requests for access to the lists of purchases and to the documentation relating to certain IT projects
118. As regards, first, the applicant’s requests seeking that the ECB and/or the Disciplinary Committee supply him with the lists of purchases of a number of goods and services ordered in the period 2003/2010 and every document, in particular from the Communication Directorate in DG Administration, connected with the ‘Organisational Development Project’ and ‘Facility Management’, the Tribunal observes that that information, even if it could be reconstituted from the Bank’s databases, did not necessarily exist in a suitable form within the ECB, that is, in the form of pre-existing documents as they had been envisaged by the applicant in his requests. Secondly, it is in no way apparent from the file that such documents or items of information, although they might admittedly be in the possession of DG Human Resources or be capable of being reconstituted by that directorate‑general or other departments, were submitted or were available to the Disciplinary Committee and the Executive Board.
119. It thus appears that those documents or items of information were requested, not because they existed or were in the possession of the Disciplinary Committee and/or Executive Board, but because the applicant was counting on their evidentiary value for the purposes of his defence.
120. In this connection, admittedly, it is not for the ECB or the Disciplinary Committee to adjudicate on the relevance or the value which certain documents might have for the purposes of the defence of a member of staff, since it is possible that documents found to be irrelevant by the ECB or the Disciplinary Committee might be of value for that member of staff. Consequently, neither the ECB nor the Disciplinary Committee could unilaterally exclude from the administrative procedure documents which might have been useful for the purposes of the applicant’s defence (see, by analogy, judgments in ICI
v Commission, T‑36/91, EU:T:1995:118, paragraph 93; Eyckeler & Malt
v Commission, T‑42/96, EU:T:1998:40, paragraph 81, and Kaufring and Others
v Commission, EU:T:2001:133, paragraphs 179 and 185).
121. However, in the present case it is neither proved nor asserted that the lists of purchases in question were available in a suitable form to the ECB or the Disciplinary Committee and that the Executive Board relied on those lists of purchases for the purposes of adopting the contested decision. In addition, the rights of the defence, in particular the right to be heard on the documents used by the Disciplinary Committee, then the Executive Board, as a basis for the contested decision, cannot be construed widely so as to include the right for the applicant to acquire any information or document available, or which may be made available, within the Bank on the sole ground that he is counting, in his own investigation of the disputed facts, on the evidentiary value of such documents or information for the purposes of his defence.
122. In any event, the Tribunal is of the opinion that, even if purchases similar to the purchases at issue might have been made in other divisions of the ECB, which the applicant was apparently seeking to prove through the requested lists of purchases, such conduct in breach of the provisions applicable to the Bank, were it to be established, would not in any way have been such as to provide a justification for the conduct of which the applicant was accused in the present case, nor, consequently, as to constitute an extenuating circumstance.
123. The applicant’s responsibility must be considered individually and separately, that is to say without reference to any lawfulness or unlawfulness of the decision taken, or the failure to take a decision, with respect to other members of staff. Thus, a member of staff may not effectively rely on the fact that disciplinary proceedings have not been initiated against one or several other members of staff in respect of acts similar to those of which he is accused, in order to challenge the disciplinary measure which has been imposed on him (see, to that effect, judgments in Williams
v Court of Auditors, 134/84, EU:C:1985:297, paragraph 14, and de Compte
v Parliament, T‑26/89, EU:T:1991:54, paragraph 170, the latter confirmed on appeal in the judgment in de Compte
v Parliament, C‑326/91 P, EU:C:1994:218, paragraph 52).
– The request for access to the file communicated to the German judicial authorities
124. So far as concerns the request for access to the file which was communicated by the Internal Audit Directorate to the German Public Prosecutor on 6 March 2013, it must first be stated that the OLAF report, in so far as it did not consider it necessary to recommend ‘judicial follow‑up’, cannot result in the ECB being denied the option of referring the matter to the national judicial authorities. Therefore, in the context of its institutional autonomy, it was open to the Bank to submit evidence on the applicant’s conduct to the German judicial authorities to enable them to examine whether that conduct was liable to be characterised as offences under German law and, in this respect, might warrant prosecution.
125. Regarding this matter, it must nevertheless be pointed out that, as the Bank confirmed in its response of 6 November 2014 to the measures of organisation of procedure, following amendments which entered into force on 1 January 2009, the Conditions of Employment no longer contain, in contrast to Article 25 of Annex IX to the Staff Regulations, the phrase formerly included in Article 44 of those Conditions of Employment according to which ‘where …. the member of staff [of the ECB] is prosecuted for those same acts, a final decision shall be taken only after a final verdict has been reached by the court hearing the case’.
126. In this connection, the applicant, in his observations of 24 November 2014 on the abovementioned response of the ECB to the measures of organisation of procedure and having conceded at the hearing that, in the end, no new facts had arisen since he had lodged the application in the present case, raised a new plea against the contested decision, alleging that, first, the deletion of the abovementioned phrase was illegal on the ground that the ECB Staff Committee was not properly consulted on that deletion and, secondly, the general principle of law, acknowledged by a number of Member States and in EU law, according to which disciplinary proceedings must await the outcome of the criminal trial, is applicable autonomously and was infringed in the present case.
127. It must be stated in this connection, first, that that new plea is not based on ‘matters of law or of fact which [have] come to light in the course of the procedure’ within the meaning of Article 56 of the Rules of Procedure of the Civil Service Tribunal. The phrase in question was deleted from the Conditions of Employment prior to the initiation of the disciplinary proceedings against the applicant, so that plea could have been submitted at the stage of the application. It is thus apparent that it was solely the content of the ECB’s reply to the question put by the Tribunal which inspired the applicant to submit that plea.
128. Secondly and in any event, that new plea is ineffective. Even if the principle in question were to be applicable in the contractual context of the employment relationship between the ECB and its staff, the Tribunal notes that, at the date on which the contested decision was adopted, as indeed on the day of the hearing, the German Public Prosecutor had not adopted any decision initiating prosecution of the applicant which would permit the inference that criminal proceedings were pending.
129. Next, to return to the complaint regarding the refusal of access to the file communicated to the German Public Prosecutor, there is no indication either in the file before the Tribunal that the Disciplinary Committee was informed of that communication or relied on such information to issue its Opinion. It follows that the file communicated by the ECB to the German judicial authorities did not at that stage form part of the disciplinary file and that, consequently, no infringement of Article 8.3.11 of the Staff Rules can be upheld in that regard.
130. On the other hand, it is apparent from the actual wording of the contested decision that the Executive Board took that information into account.
131. The ECB explained, in the rejoinder, that the Internal Audit Directorate had delivered a number of documents ‘by hand’ to the German Public Prosecutor, without indicating which documents they were. In this respect, the Tribunal takes the view that the ECB’s failure to automatically make available to the applicant the documents which were delivered ‘by hand’ to the German Public Prosecutor does not in itself infringe the Staff Rules, since that delivery falls within the ambit of its institutional autonomy given that, under Article 3 of the Conditions of Employment, every member of staff of the Bank is required to comply with the laws and police regulations in force. The Tribunal further considers that it is not proved, even though the applicant disclosed that he received a CD-ROM from the German Public Prosecutor containing the notification made by the ECB, that the Executive Board relied upon the documents notified to the German Public Prosecutor, there being moreover no evidence in the file that they were different to the documents already in the applicant’s possession. In addition, the Tribunal observes that no decision had been adopted by the German Public Prosecutor on the initiation of judicial proceedings by the date of the contested decision, or even by that of the hearing before the Tribunal, as confirmed by the parties at that hearing.
132. As regards the information in the contested decision that the ECB had notified the applicant’s case to the German Public Prosecutor, first, it is not apparent from the contested decision that that information was decisive for the purposes of the adoption of that decision, in particular given that the decisive reasons for the disciplinary measure are set out in points 11 to 14 of the decision in question. Secondly, the Tribunal considers that, even if the applicant had been given the opportunity to comment on that information, that would not have had any impact on the reasons upheld in points 11 to 14 of the contested decision and, consequently, on the disciplinary measure adopted by the Executive Board.
– The request for access to the Panel’s activity report
133. As a preliminary point it must be stated that, even if it might also have previously been included in the Panel’s activity report, the evidence accepted by the ECB in support of the complaints against the applicant, which thus defines the framework of the disciplinary proceedings culminating in the contested decision, is that set out in the Article 8.3.2 report on which the applicant has stated his position in full and which was made available to the Disciplinary Committee and the Executive Board. The OLAF report, drawn up after that office had conducted its own investigation, with the assistance of the Internal Audit Directorate of the ECB and after hearing several members of staff, is also a key component of the disciplinary file disclosed to the applicant, on which he was given the opportunity to comment and which forms the essential basis for the Opinion of the Disciplinary Committee, as that Opinion itself indicates.
134. As regards the Panel’s activity report, the Tribunal observes that it was compiled on 15 March 2011 in connection with the unfinished initial administrative inquiry, that is to say, before the initiation of the disciplinary investigation under Article 8.3.2 of the Staff Rules which led to the adoption of the contested decision. Furthermore, irrespective of the content of that report, the Internal Audit Directorate clearly stated when it forwarded it to OLAF on 30 March 2011 that it contained only ‘the key observations and interim assessments by the Inquiry Panel on each of the 13 categories of questionable purchases performed by [the Administrative Services Division and] must not be construed as any form of final conclusions on any such category or on any other element of [the] case’. Likewise, when it forwarded that report to DG Human Resources on 22 March 2012, the Internal Audit Directorate pointed out that it ‘[was] merely a summary reflection of all the observations and interview results until 26 July 2010, and that it [was to] be strictly distinguished from a “reasoned report setting out the facts and circumstances of the case and the existence or absence of sufficient evidence of the alleged breach ”’.
135. Accordingly, even if the contents of the Panel’s activity report might have steered OLAF’s investigative work, in the same way as any other information communicated by the ECB under the technical cooperation process used for OLAF investigations, and might also have guided the Commission of Inquiry in its investigative work with a view to the adoption of the Article 8.3.2 report, that activity report, unlike the Article 8.3.2 report, cannot be regarded as a final report endorsed by the Bank or be deemed to constitute a reasoned report within the meaning of Article 6(14) of Circular No 1/2006.
136. Taking account of the preliminary nature of the findings and conclusions which the Panel’s activity report might potentially have contained and the legitimate interest in protecting the anonymity of the whistleblower who first disclosed certain problems in the Administrative Services Division to the administration, the Tribunal takes the view that that report was a preparatory note, drafted before the disciplinary proceedings were initiated and not relied on by the decision-making authority, namely the Executive Board, in its adoption of the contested decision. Consequently, that preparatory note, as an internal document, was not part of the disciplinary file and, pursuant to the Staff Rules, it was not necessary to communicate it to the applicant in order to guarantee his rights of the defence (see, to that effect, judgment in N
v Commission, EU:T:1997:71, paragraph 92).
137. So far as concerns the reply provided by the Disciplinary Committee adjudicating on the applicant’s request for disclosure of the Panel’s activity report, the Tribunal finds that the Disciplinary Committee did not exercise its discretion on that matter incorrectly when it considered that, in as much as the disciplinary file contained sufficient information both as regards the acts of which the applicant was accused and in support of his arguments in defence, the inclusion in the file of that document containing the Panel’s interim assessments was not of any added value and would have unduly delayed the proceedings (see, to that effect, judgments in R. v Commission, 255/83 and 256/83, EU:C:1985:324, paragraph 24, and Y
v Court of Justice, T‑500/93, EU:T:1996:94, paragraph 45).
138. As regards the fact that the Disciplinary Committee acquired the Panel’s activity report because it considered that necessary in order to respond to the applicant’s request of 11 December 2012 for access to that document, the Tribunal finds that it would, admittedly, have been more desirable for the Disciplinary Committee to have rejected the applicant’s request on the sufficient ground that it did not have the document in question. That being so, it cannot be held, because the Disciplinary Committee agreed to ask the Bank for that document and to examine it in order to be able to respond to the applicant’s request, that that report then became a component of the disciplinary file and that the Disciplinary Committee necessarily relied on that report for the purposes of adopting its Opinion. The Opinion moreover does not contain any reference to the Panel’s activity report, the Disciplinary Committee having on the contrary stated, at point 9 thereof, that it ‘relies in substance on the fact findings of the OLAF report, as summarised above’.
139. For the sake of completeness, the Tribunal points out that, in any event, although the administration is obliged to communicate to the person concerned the documents on which it expressly relies in order to adopt a decision adversely affecting that person and that, in the case of the Bank, it is required, under Article 8.3.11 of the Staff Rules, to allow that person to ‘take copies of all documents relevant to the proceedings, including exonerating evidence’, the failure to disclose certain documents is not liable to lead to the annulment of the decision concerned unless the administration’s objections can be proved only by reference to those latter documents, that is to say, that the failure to disclose the documents identified by the applicant could have influenced the course taken by the disciplinary proceedings and the content of the contested decision to the applicant’s detriment (see judgments in Tzoanos
v Commission, C‑191/98 P, EU:C:1999:565, paragraphs 34 and 35, and E
v Commission, T‑24/98 and T‑241/99, EU:T:2001:175, paragraphs 92 and 93).
140. Even on the assumption that some elements of the Panel’s activity report might not have been repeated in the Article 8.3.2 report or in the OLAF report or, further, that the Panel’s activity report may be equiparated with a reasoned report adopted in breach of the requirements in Circular No 1/2006, the applicant has not proved that the ECB relied on that report and, in particular, has not indicated which specific and decisive elements, both in the Opinion of the Disciplinary Committee and in the contested decision, could be proved only by reference to documents other than those with which he was acquainted, that is, by reference to data allegedly contained in the Panel’s activity report.
141. Although the applicant, before acquainting himself with the Panel’s activity report, had raised the possibility that that report contains evidence exonerating him, the Tribunal notes that, after obtaining a confidential version of that report on 9 October 2014 by asking the German Public Prosecutor for it and then also, on 10 November 2014, a non-confidential version provided by the ECB at the Tribunal’s request, the applicant merely, in his response of 6 November 2014 which he did not supplement after the abovementioned communication of 10 November 2014, referred to passages, in particular in the originating application, and mentioned in general terms four elements which, in his view, were not proved in the Article 8.3.2 report and in the OLAF report, without however identifying the relevant passages in those reports. In this connection the Bank, by contrast, in its observations of 24 November 2014, indicated which documents proved those four elements.
142. The applicant, when interviewed on this issue at the hearing, mentioned by way of example two passages in the Panel’s activity report which he claimed were not reproduced in the Article 8.3.2 report. The first, relating to the fact that some staff in the Administrative Services Division allegedly received BlackBerry mobile telephones from DG Information Systems, is not such as to cast doubt on the fact that the applicant himself approved the purchase of such telephones although DG Information Systems had refused to make that purchase. As regards the fact that solely two out of the six ECB drivers were interviewed and one of them allegedly confirmed that video games had indeed been provided to the drivers, that does not constitute evidence which, had it been communicated to the applicant at the Article 8.3.2 report stage, would have allowed him to effectively call in question the allegations against him. In short, in view of the applicant’s replies, including those at the hearing, the Tribunal finds that, taking account of the documents of which the Panel had already been made aware, the Panel’s activity report does not contain any inculpatory evidence which might have genuinely influenced the course taken by the disciplinary proceedings and the content of the contested decision to the applicant’s detriment, or indeed any evidence exonerating him.
143. Having regard to the foregoing, the first plea must be rejected, as must the applicant’s request that the Bank be ordered to produce the notification to the German Public Prosecutor and the Panel’s activity report, documents with which he has since familiarised himself by, inter alia, addressing a request to the German Public Prosecutor.
The second plea, alleging that Article 8.3.5 of the Staff Rules is illegal having regard to the principle of impartiality and to Article 47 of the Charter
Arguments of the parties
144. By putting forward this plea, the applicant is in fact raising an objection of illegality against Article 8.3.5 of the Staff Rules. According to the applicant, unlike Articles 4 and 5 of Annex IX to the Staff Regulations, which concerns disciplinary proceedings, Article 8.3.5 of the Staff Rules provides that the Director‑General of DG Human Resources sits on the Disciplinary Committee. The applicant submits that, in as much as the Director‑General of DG Human Resources holds ‘ultimate power over any member of staff, especially managers (and [over] the other members of the Disciplinary Committee (with the exception of the [C]hairman and to a certain extent to the member[s] designated by the [S]taff [C]ommittee …))’, Article 8.3.5 of the Staff Rules infringes the principle of impartiality and Article 47 of the Charter. He claims that, in the present case, the Deputy Director‑General of DG Human Resources behaved in an accusatory manner at the hearing before the Disciplinary Committee and did nothing but emphasise the inculpatory evidence, thereby infringing the principle of neutrality. The Deputy Director‑General of DG Human Resources even put forward evidence against the applicant which he obtained in ‘his own “external” investigation’. The applicant’s impression of bias on the part of the Disciplinary Committee is supported by the fact that one of the members of the Disciplinary Committee obtained communication of the Panel’s activity report in his capacity as a member of DG Human Resources.
145. The ECB submits that the second plea is manifestly unfounded. It points out that the Director‑General of DG Human Resources has a single vote on the Disciplinary Committee and sits with four other members. It is legitimate that a representative of the directorate‑general of the ECB responsible for monitoring compliance by members of staff with their obligations, in this case DG Human Resources, sits on that committee. The applicant’s assertions as to the alleged hold of DG Human Resources over the Disciplinary Committee are mere conjecture. The ECB considers that this is borne out, specifically, by the fact that the disciplinary measure recommended by the Disciplinary Committee, namely demotion by two salary bands, was more lenient than that ultimately adopted by the Executive Board in the contested decision. The differences between the Staff Rules and the rules provided for in the Staff Regulations are due, according to the Bank, to the ECB’s functional autonomy.
Findings of the Tribunal
146. Under Article 36.1 of Protocol on the Statute of the ESCB and of the ECB, the ECB has functional autonomy as regards the body of rules applicable to its staff, which is distinct from the rules applying to EU officials and the rules applying to other staff of the European Union, to which Article 336 TFEU refers. It is also not dependent on the laws of the Member States (see judgment in Pflugradt
v ECB, T‑178/00 and T‑341/00, EU:T:2002:253, paragraph 48).
147. Even if those considerations, in themselves, in the present case do not preclude the applicant from raising an objection of illegality against Article 8.3.5 of the Staff Rules, it must be recalled that the employment relationship between the ECB and its members of staff is of a contractual nature, and not of the type existing between the public service and its officials; that it nevertheless forms part of the framework for the performance by staff of the ECB of their duties in the European public interest and therefore bears strong similarities to the relationship of public service between European Union officials and their institutions, so that it may, on that basis, include a disciplinary regime; that that disciplinary regime formed an integral part of the conditions known to and accepted by the applicant at the time when he freely signed his contract of employment with the ECB, which refers to the Conditions of Employment; lastly, that the right on the part of the employer unilaterally to terminate the employment contract in the event of serious misconduct by the employee is also provided for by the private labour laws of most Member States and that, under most of those laws, that right is accompanied by fewer guarantees protecting the employee than is the case in the employment relationship between the ECB and its staff (judgment in X
v ECB, EU:T:2001:251, paragraphs 61 and 68 to 70).
148. Consequently, it is open to the ECB, within the framework of its institutional autonomy, to provide for a disciplinary regime involving a Disciplinary Committee whose composition is governed by rules which differ, even significantly, from those in Section 2 of Annex IX to the Staff Regulations on the Disciplinary Board provided for in respect of officials and other members of staff of the European Union. That said, so far as concerns the disciplinary regime at issue in the present case, which was not in force in the case which gave rise to the judgment in X
v ECB
(EU:T:2001:251), it must be held that the ECB intended, in the interests of sound administration and fairness, that the Executive Board’s decision on disciplinary matters would be adopted in the light of an Opinion issued by a body which is to a certain extent neutral and impartial.
149. In that regard, the Tribunal observes that, pursuant to Article 8.3.5 of the Staff Rules, the Disciplinary Committee of the ECB is composed of a person external to the institution, acting as Chair, and the Director‑General or Deputy Director‑General of DG Human Resources. It is also composed of two other members appointed by the ECB from among its staff and a member suggested by the Staff Committee, with the proviso that those three latter members must not belong to the same business area as the member of staff against whom disciplinary proceedings have been instigated. Furthermore, the member of staff who is the subject of those proceedings is allowed to object to one of the members of the Disciplinary Committee.
150. Even if the members appointed by the administration and those appointed by the Staff Committee are not as equally balanced as in the corresponding provisions of the Staff Regulations, the Tribunal is of the opinion that (i) the composition of the Disciplinary Committee, in particular the inter-departmental origin of its members, (ii) the fact that Article 8.3.7 of the Staff Rules provides that ‘[t]he deliberations and proceedings of the Disciplinary Committee shall be treated as personal and confidential in accordance with the ECB’s internal rules on confidentiality [and that t]he members of the Disciplinary Committee shall act in their personal capacity and shall be completely independent in the performance of their duties’, (iii) the collegial nature of the deliberations and, lastly, (iv) the possibility for the member of staff concerned to object to one of its members constitute, in a context not governed by the Staff Regulations, sufficient guarantees as to the impartiality and objectivity of the Opinion which the Disciplinary Committee compiles and adopts for the benefit of the Executive Board (see, to that effect, judgment in Onidi
v Commission, T‑197/00, EU:T:2002:135, paragraph 132).
151. In that regard, the fact that the Director‑General or the Deputy Director‑General of DG Human Resources is a member of the Disciplinary Committee as of right does not mean, contrary to what the applicant conjectures, that that member exercises or is able to exercise ‘ultimate power over any member of staff’ and, therefore, over the deliberations of the Disciplinary Committee.
152. In particular, first, it has not been proved that such a person, even though he is the Director‑General of DG Human Resources, would necessarily act against the applicant. Indeed, the Tribunal considers it to be acceptable, in a context not governed by the Staff Regulations such as that characterising the employment relationship between the ECB and its staff, that the Bank’s interests be represented on the Disciplinary Committee by such a member of staff, a fortiori
since the Director‑General of DG Human Resources does not sit on the Executive Board, the decision-making body in disciplinary matters.
153. Secondly, the applicant’s claim that the Director‑General or Deputy Director‑General of DG Human Resources has access to privileged information which he would use to influence the work of the Disciplinary Committee must be dismissed, since it is in no way proved and runs counter to the principle of the collegiality of the discussion and to the fact that every member of the Committee has the possibility of drafting a divergent opinion, which, for example, the member designated by the Staff Committee would certainly have done if a document not included in the disciplinary file had been submitted to him. Moreover, the applicant cannot object that one of the members appointed by the administration interviewed the applicant at his hearing before the Disciplinary Committee in a way he perceived as accusatory. Such conduct, even if it were established, is not necessarily a sign of bias but may be explained by a wish to contribute openly to the discussion by confronting the applicant with the accusations made against him.
154. Therefore, even though the applicant might personally have been given the impression that the statements of the Deputy Director‑General of DG Human Resources at his hearing were expressed in an accusatory manner, this in itself is not a sign of breach of the rights of the defence or of the principle of the presumption of innocence, especially having regard to the fact that, despite the position adopted by some members in favour of imposing the measure of dismissal, the Disciplinary Committee, by consensus, ultimately recommended a more lenient measure (see, to that effect, judgment in Zavvos
v Commission, T‑21/01, EU:T:2002:177, paragraph 336).
155. Nor can it be definitively stated that, on account of his functions, the Director‑General or Deputy Director‑General of DG Human Resources is necessarily in a situation of a conflict of interest, that is to say, a situation where a member of staff, in the performance of his duties, is called upon to decide on a matter in the handling or outcome of which he has a personal interest such as to impair his independence (see, on the concept of a conflict of interests, judgment in Giannini
v Commission, T‑100/04, EU:T:2008:68, paragraph 223). Attention must in particular be drawn to the fact that, as the Bank has pointed out, the members of the Inquiry Panel, the members of ECB staff involved in the Article 8.3.2 report and the members of the Disciplinary Committee were all different people in the present case.
156. The Tribunal also observes that, pursuant to Article 8.3.5 of the Staff Rules, the Chair of the Disciplinary Committee, even if he does not have the right to vote, is not the Director‑General or Deputy Director‑General of DG Human Resources but a person external to the ECB, in this case a former Member of the Tribunal. Moreover, Article 8.3.6 of the Staff Rules expressly provides that any member of the Disciplinary Committee who has a conflict of interests is obliged to decline to act.
157. In any event, the judicial review conducted by the European Union judicature in the context of an action on the basis of Article 270 TFEU or, as in the present case, of Article 36.2 of the Protocol on the Statute of the ESCB and of the ECB, allows a party sufficient and effective remedy before an independent and impartial tribunal within the meaning of Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, and the case-law of the European Court of Human Rights, and makes it possible, in any event, to rectify the failures and inadequacies alleged by the applicant, including as to the composition of the Disciplinary Committee (see, to that effect, judgment in Andreasen
v Commission, T‑17/08 P, EU:T:2010:374, paragraph 145).
158. Having regard to the foregoing, the second plea, alleging the illegality of Article 8.3.5 of the Staff Rules, must be rejected.
The third plea, alleging breach of the presumption of innocence, of the principle of impartiality and of Articles 47 and 48 of the Charter
Arguments of the parties
159. By his third plea, the applicant claims that in the contested decision the Executive Board did not answer the complaints which he had set out in his ‘note in defence’, which were ignored by the Disciplinary Committee. Essentially, the applicant alleges that ECB accepted from the outset that he was guilty of the acts of which he was accused. He thus submits that the Bank did not take into account his contribution to the significant improvement in various aspects of the operation of the Administrative Services Division. He also submits that the proceedings against him were biased because, among the four members of the Disciplinary Committee with a vote, two members, one of whom was doubtlessly the Deputy Director‑General of DG Human Resources, found that the existing evidence demonstrated that the reason behind the alleged breaches was the applicant’s pursuit of his personal interest. He adds, in connection with the present plea, that in the contested decision the Executive Board distorted the Opinion of the Disciplinary Committee since it referred to the abovementioned view taken by two members of the Disciplinary Committee even though, in its Opinion, that Committee had held by a majority that it was not convinced that the pursuit of personal interest could be established ‘without doubt’. Lastly, the notification, contrary to OLAF’s recommendations, of the German Public Prosecutor is likewise a sign of breach of the principle of the presumption of innocence.
160. The ECB contends that the third plea should be rejected as manifestly unfounded, pointing out first of all that there is no requirement under the relevant case-law for the Executive Board to address or to mention in the decision imposing the disciplinary measure all the aspects called into question by the member of staff concerned before the Disciplinary Committee. The Bank submits, secondly, that the fact, raised by the applicant, that he was suspended during the inquiry phase in no way proves a breach of the presumption of innocence and, indeed, that the applicant cannot reopen the debate, closed by the judgment in AX
v ECB
(EU:F:2012:195), regarding the lawfulness of the suspension measures. Likewise, the fact that the Disciplinary Committee decided not to take the same view as the applicant, developed at length in his written submissions with which that committee fully acquainted itself, does not denote any breach of the principle of the presumption of innocence. The ECB is moreover free to submit a file to the German Public Prosecutor, even if OLAF has not recommended such a course of action.
161. As regards the applicant’s allegations that the inquiry procedure, the disciplinary proceedings and the contested decision are signs of an intention on the part of the Bank to establish his guilt, the ECB not only considers them to be without substance, but also regrets that the applicant ‘puts forward such speculative and vexatious comment[s] before [the] honourable Tribunal’.
Findings of the Tribunal
162. It must be recalled that a breach of the presumption of innocence can be found only where there is evidence such as to prove that the administration had decided, from the start of disciplinary proceedings, to impose in any event a disciplinary measure on the person concerned, regardless of the explanations provided by that person (see judgment in Pessoa e Costa
v Commission, T‑166/02, EU:T:2003:73, paragraph 56).
163. As regards the suspension of the applicant from his duties before the adoption of the contested decision, it must be noted that the possibility afforded by Article 46 of the Conditions of Employment to suspend a member of staff is not intended as a disciplinary measure against that person (see, to that effect, judgment in X
v ECB, EU:T:2001:251, paragraph 151) but to enable the administration to adopt a precautionary measure in order to ensure that that member of staff does not interfere with the ongoing inquiry.
164. Those points having been made, the Tribunal takes the view that the applicant’s arguments, so far as his third plea is concerned, are partially intended to challenge the reasons or the lack of reasons stated for the contested decision. In so far as that aspect is the subject of the fifth plea, it will be dealt with in the context of that plea.
165. The other part of the applicant’s arguments seeks essentially to criticise the Disciplinary Committee and the Executive Board for not concurring with the point of view defended by the applicant in the disciplinary proceedings.
166. The fact that two members of the Disciplinary Committee expressed the view, as they are permitted to do under Article 8.3.15 of the Staff Rules, that the reason behind the alleged breaches was the pursuit of the applicant’s personal interest does not in any way prove a breach of the principle of the presumption of innocence. Such a position merely reflects the principle that the discussion is conducted collegiately and that members have the option to attach a divergent view to the definitive Opinion issued by the Disciplinary Committee by majority. On this aspect, the Disciplinary Committee in its Opinion indeed did not find that a personal interest ‘could be established strictly speaking without doubt’. As to the remainder, the Disciplinary Committee, on the other hand, dismissed as unfounded the applicant’s allegations, contained inter alia in his ‘note in defence’, with respect to a breach of his rights of the defence.
167. Furthermore, the Tribunal takes the view that the fact that the Executive Board decided in the present case to adopt one of the most serious disciplinary measures provided for by the Staff Rules does not in itself demonstrate that the principle of the presumption of innocence was breached during the disciplinary proceedings.
168. The notification delivered to the German Public Prosecutor falls within the scope of the ECB’s prerogatives in the context of its institutional autonomy and it was without prejudice to the position which would be adopted by the German judicial authorities in their specific field of jurisdiction, criminal law. Indeed, in his response of 6 November 2014 to the measures of organisation of procedure, the applicant admitted receiving a copy of a CD-ROM from the German Public Prosecutor containing the notification from the ECB, without however being able to identify any evidence such as to support his claims of breach of the principle of the presumption of innocence.
169. As to the remainder, the Tribunal cannot find, in the applicant’s arguments, the slightest prima facie evidence in support of his nevertheless serious claims that the principle of the presumption of innocence was violated by the ECB in his case.
170. Consequently, the third plea must be rejected.
Fourth plea, alleging breach of the obligation of due diligence on account of a failure to observe the reasonable time principle
Arguments of the parties
171. In this plea, the applicant criticises the ECB on the ground that, in their entirety, the initial inquiry procedure and the disciplinary proceedings which led to the contested decision lasted for more than three years. Such a duration is unreasonable and, even though some periods are due to OLAF’s investigation procedure, the ECB ought to be held liable for periods linked to OLAF’s investigations inasmuch as no action may be brought against the investigation reports of that office. Relying on the judgment in Andreasen
v Commission
(F‑40/05, EU:F:2007:189), the applicant also argues that he was suspended from his duties for a period of 38 months over the entire procedure.
172. The ECB contends that the fourth plea manifestly lacks any legal basis, submitting, in particular, that the applicant himself concedes that the Bank complied with the time-limits in Article 8.3.2 of the Staff Rules. Furthermore, having regard to the relevant case-law, there was no breach at all of the reasonable time principle. The issue of the length of time the applicant was suspended from his duties is not part of the subject-matter of the present action.
Findings of the Tribunal
173. The ECB or, in some cases, OLAF, is required to act with due diligence in disciplinary matters, from the point in time when it becomes aware of facts and conduct which may constitute a breach of the obligations on the staff of the ECB in considering whether an investigation should be opened, and, where applicable, in conducting that investigation and, in the case of the ECB, the disciplinary proceedings (see, by analogy, judgment in Kerstens
v Commission, F‑12/10, EU:F:2012:29, paragraph 125).
174. In that regard, it is settled case-law that the time-limits set out to govern the course of disciplinary proceedings from a temporal point of view are not mandatory, but constitute primarily a rule of sound 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 (judgment in D
v Commission, T‑549/93, EU:T:1995:15, paragraph 25). The European Union judicature has indeed stated that, for the purposes of assessing what constitutes a reasonable period within which disciplinary proceedings must be conducted, it must ‘take into consideration only the period which has elapsed between one procedural step and the subsequent step [and that t]hat assessment is a matter separate from the total length of the disciplinary proceedings’ (judgment in Teixeira Neves
v Court of Justice, T‑259/97, EU:T:2000:208, paragraph 123 and the case-law cited).
175. Thus, in the application of its disciplinary procedure, the ECB must ensure that every step it takes is taken within a reasonable time of the last (see, to that effect, judgments in Kerstens
v Commission, EU:F:2012:29, paragraph 124, and Goetz
v Committee of the Regions, F‑89/11, EU:F:2013:83, paragraph 126).
176. In the present case, as soon as it became aware of the allegations made by the whistleblower, the Bank, in February 2010, formed an Inquiry Panel whose work could not be completed on account of the investigation opened by OLAF on the same facts, on 1 July 2010. The Bank was notified of that investigation on 26 July 2010. OLAF’s investigation involved, inter alia, a visit to ECB premises and interviews conducted with thirteen members of ECB staff. OLAF’s work was completed by the communication to the ECB of a final investigation report on 27 January 2012.
177. In this connection, the Tribunal finds that the initial administrative inquiry procedure and the OLAF investigation procedure were instigated within a reasonable period, that is, a short time after the Bank and OLAF, respectively, had become aware of the facts and conduct which might constitute breaches of the obligations on the staff of the ECB (see, to that effect, judgments in François
v Commission, T‑307/01, EU:T:2004:180, paragraph 48, and López Cejudo
v Commission, F‑28/13, EU:F.2014:55, paragraph 90).
178. So far as concerns the duration of OLAF’s investigation (19 months), that appears to be reasonable having regard to the number and nature of the purchases at issue and the technical nature of some of the items with which the investigation was concerned.
179. Subsequently, the Bank adopted the Article 8.3.2 report opening the disciplinary proceedings and fixing their scope. The adoption of that report, on 19 November 2012, was carried out after hearing the applicant and having taken into account the documents submitted by him on 24 August 2012 and his observations submitted on 18 October 2012 on the draft report sent to him. In this connection, the Tribunal finds that the nine months which elapsed between the communication to the ECB of the OLAF report and the Bank’s adoption of the Article 8.3.2 report are not excessive in the light of numerous and voluminous documents involved and the many observations submitted by the applicant prior to the adoption of the Article 8.3.2 report. Furthermore, the ECB cannot be criticised for having considered it necessary, pursuant to its internal rules, to carry out a new internal administrative inquiry, in addition to the initial administrative inquiry and OLAF’s investigation, in order to compile the Article 8.3.2 report (see, to that effect, judgment in Goetz
v Committee of the Regions, EU:F:2013:83, paragraphs 131 and 132). The uncompleted initial administrative inquiry, conducted on the basis of Circular No 1/2006, was, as is apparent from Article 2(1) of that circular, without prejudice to the opening of disciplinary proceedings, which could be initiated only in accordance with the requirements in Article 8.3 of the Staff Rules, in particular in Article 8.3.2 thereof. Moreover, in the present case, the persons making up the Inquiry Panel were different to those having worked together on the compilation of the Article 8.3.2 Report.
180. Following its appointment on 27 November 2012, the Disciplinary Committee heard the applicant in his written and oral observations in January 2013 and delivered its Opinion on 5 April 2013. In that regard the Tribunal finds that, by completing its work within four months, that committee functioned with the required promptness, and what is more in a complex case and despite the numerous observations and objections made by the applicant, in particular with regard to the minutes of his hearing by the Disciplinary Committee.
181. The adoption of the contested decision on 28 May 2013, after the applicant had submitted his observations on 24 April 2013, complies with both the time-limit provided for in Article 8.3.17 of the Staff Rules and the reasonable time principle.
182. Looking back on the disciplinary proceedings conducted in the present case, it is apparent that the period which elapsed between every procedural step and the subsequent step was quite reasonable and that, if there was any delay, that was due to the need to observe the applicant’s rights of the defence and to answer the numerous comments and observations submitted by his lawyer (see judgment in Teixeira Neves
v Court of Justice, EU:T:2000:208, paragraph 125).
183. The Tribunal also finds that, viewed in their entirety, both the initial administrative inquiry procedure and the disciplinary proceedings were completed within a reasonable period, namely three years and three months. The Tribunal indeed observes that, in any event, the applicant does not claim that the Bank failed to meet any time-limit provided for in its applicable provisions on disciplinary matters.
184. Lastly, although, admittedly, during the investigations prior to the initiation of the disciplinary proceedings and the disciplinary proceedings themselves the applicant was placed in a situation of apprehension and uncertainty, in particular as regards his professional future, that aspect cannot affect the legality of the contested decision given that that situation is inherent to any disciplinary proceedings and in the present case the initiation of those proceedings was warranted by the interest of the European Union, which required the ECB, faced with allegations casting doubt on the integrity of two of its members of staff, one of whom was the applicant, to take the necessary measures, including suspending the applicant, to satisfy itself of the irreproachable nature of the latter’s professional conduct (see, to that effect, judgment in Pessoa e Costa
v Commission, EU:T:2003:73, paragraph 66).
185. Having regard to the foregoing, the fourth plea must be rejected
The fifth plea, alleging a breach of the duty to state reasons
Arguments of the parties
186. According to the applicant, the contested decision does not provide any statement of reasons in respect of his complaints alleging the infringement of his fundamental rights and the failure to observe the reasonable time principle and the obligation of due diligence. Nor does it provide any explanations as to the objections upheld against the applicant, the obligations allegedly infringed and the extent to which the alleged acts were linked to each of the breaches of duty found by the Bank. The contested decision does not state, to the requisite legal standard, the reasons for which the Executive Board decided to impose a measure stricter than that recommended by the Disciplinary Committee. It furthermore does not explain why the Bank decided that the relationship of trust with the applicant had broken down, even though the Disciplinary Committee in its Opinion had indicated that a breakdown in the relationship of trust could be established only if it were proved, which it is not, that the applicant had acted in pursuit of his personal interest.
187. The Bank contends that the plea should be rejected, pointing out that, having regard to the content of his arguments, the applicant does not seem to have understood the scope of the obligation to state reasons, especially in a case such as that here with which the member of staff concerned is very familiar. The ECB challenges the applicant’s view that the finding that the relationship of trust between a member of staff and his employer has broken down calls for proof that the actions of the member of staff were motivated by personal interest.
Findings of the Tribunal
188. The obligation to state reasons, referred to in Article 296 TFEU and recalled in Article 41(2)(c) of the Charter, constitutes an essential principle of EU law whose objective is, first, to provide the party concerned with the necessary information to enable him to ascertain whether or not the decision adversely affecting him is well founded and, secondly, to enable judicial review of the decision (see judgments in Michel
v Parliament, 195/80, EU:C:1981:284, paragraph 22; Lux
v Court of Auditors, 69/83, EU:C:1984:225, paragraph 16; and Camacho-Fernandes
v Commission, F‑16/13, EU:F:2014:51, paragraph 111).
189. The question whether the statement of reasons for the ECB’s decision imposing a disciplinary measure on one of its members of staff meets those requirements 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 matter in question, namely disciplinary proceedings. In this connection, although the Disciplinary Committee and the Executive Board are required to state the issues of fact and law which constitute the legal basis of their Opinion and/or decisions, and the considerations which led them to adopt them, they are nevertheless not required to discuss all the issues of fact and law which have been raised by the interested party during the proceedings. In any event, the reasons given for a decision are sufficient if it was adopted in circumstances known to the staff member concerned which enable him to understand the scope of the measure concerning him (judgment in EH
v Commission, F‑42/14, EU:F:2014:250, paragraph 131 and the case-law cited).
190. If, however, as in the present case, the disciplinary measure imposed on the person concerned 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, even in connection with an employment relationship which is purely contractual, state in detail the reasons why the Bank has not followed the Opinion issued by the Disciplinary Committee (see, to that effect, judgments in F.
v Commission, 228/83, EU:C:1985:28, paragraph 35; N
v Commission, T-198/02, EU:T:2004:101, paragraph 95; and EH
v Commission, EU:F:2014:250, paragraph 132).
191. In the present case, the Tribunal observes that the context in which the contested decision was taken was well known to the applicant, having regard in particular to the content of the numerous w ritten and oral observations he had submitted during the disciplinary proceedings, including those on the draft acts drawn up in the course of those proceedings such as the minutes of hearings. Specifically, contrary to what the applicant claims, the objections made against him were set out with sufficient clarity and precision in the Article 8.3.2 report and in the Opinion of the Disciplinary Committee, as presented, inter alia, at paragraphs 67, 70 and 81 above, documents on which he was heard in full.
192. Secondly, the Opinion of the Disciplinary Committee gives an account of the complaints against the applicant, the various rules and provisions in force at the ECB which that Committee found that the applicant had infringed and the reasons why it considered to be unfounded the claims made by the applicant, inter alia in his note in defence, alleging that his rights of the defence had been violated. That committee in its Opinion also described the questions debated within it. It is apparent from this that the members of the Committee were divided on the issue of whether the applicant should be dismissed but that, on the other hand, they reached a consensus that dismissal could be imposed if ‘in addition, the breaches of professional duty were motivated by furthering personal interest which would irrevocably destroy the trust basis between the ECB and [the applicant]’. In that context, two members of the Disciplinary Committee took the view that the evidence in the file to that effect was sufficiently conclusive but, ultimately, the majority of the members did not consider themselves to be ‘fully convinced that a private interest … could be established strictly speaking without doubt’.
193. After setting out the extenuating circumstances which could be accepted in the applicant’s case, the Disciplinary Committee, by consensus, proposed that a disciplinary measure of demotion by two salary bands should be imposed on the applicant.
194. It is in that context that the contested decision was taken, in which the Executive Board stated that it had taken into account the Opinion of the Disciplinary Committee, the disagreement within that committee as to whether a personal interest had been established and the extenuating circumstances referred to in that Opinion. The Executive Board nevertheless accepted as an aggravating circumstance, inter alia, the fact that the applicant had committed the relevant breaches of his professional duty in his position as manager with special responsibility for safeguarding the reputation and financial interests of the ECB. The Executive Board went on in the contested decision to set out its level of requirements in terms of the integrity of its staff and found that the breaches of professional duty at issue had irrevocably damaged the relationship of trust which the Bank considered it necessary to have with its staff.
195. Having regard to the foregoing, the Tribunal is of the opinion that the contested decision, read in conjunction with the Opinion of the Disciplinary Committee to which it refers, contains a statement of reasons in line with the requirements in the case-law, also applicable to the Bank and mentioned in paragraphs 188 to 190 above.
196. Specifically, contrary to what the applicant claims, the Executive Board explained why it adopted a sanction stricter than that on which the Disciplinary Committee had agreed by consensus. In that regard, the fact that the disciplinary measure adopted by the Executive Board corresponds to that favoured by two of the four members of the Disciplinary Committee with voting rights is not, in itself, such as to vitiate the contested decision in terms of the obligation to state reasons.
197. As regards the circumstances in which it may be held that the relationship of trust between the Bank and one of its members of staff has broken down, it must be pointed out that the Executive Board is not bound by the Opinion of the Disciplinary Committee, as Article 8.3.17 of the Staff Rules expressly states. Consequently, even though the majority of the Disciplinary Committee agreed that, from its point of view, a breakdown in the relationship of trust could be established by the Executive Board if the latter took the view that the applicant had been furthering his personal interest, the Tribunal finds that the Executive Board could, under its broad discretion to define its requirements in terms of the integrity of ECB staff, take the view in the present case that the breakdown in the relationship of trust was complete, even outside the situation suggested by the Disciplinary Committee, that is to say even in the absence of proof that the applicant had been furthering his personal interest. The Tribunal indeed observes that the applicant did not, in his observations of 24 April 2013 on the Opinion of the Disciplinary Committee, actually set out specific arguments on the issue of the breakdown in the relationship of trust nevertheless referred to by the Disciplinary Committee in its Opinion sent to the Executive Board.
198. It follows from the foregoing that the fifth plea must be rejected.
The seventh plea, alleging a manifest error of assessment and breach of the principle of proportionality
Arguments of the parties
199. The applicant essentially claims that the contested decision does not clearly identify the complaints upheld on which that decision was based and does not adequately take into account the extenuating circumstances which he had raised during the disciplinary proceedings. In particular, he stresses that all the purchases at issue complied fully with the rules in force at the ECB and were known about and visible to other departments; that deficiencies were noted, notably by OLAF, in the financial control and monitoring of the Administrative Services Division; that when warned by his management that certain purchases, namely the electronic photo frames, would not be allowed, the applicant complied with their instructions; that he had not been given specific training or advice on the applicable budgetary rules; his professional performance in bringing up the level of the Administrative Services Division, which enabled the ECB to save several million euro; the thin layer of management in that division; the extent of the tasks entrusted to him and the fact that he was responsible for approving hundreds of purchase orders and invoices for the Administrative Services Division per week and that, ultimately, the purchases at issue in the present case represented, in terms of their overall value, less than a thousandth of the Division’s budget.
200. The applicant claims that because a number of extenuating circumstances were not taken into account, or were insufficiently taken into account, the disciplinary measure imposed on him by the ECB was disproportionate. In that connection, he denies having damaged the reputation of the ECB by authorising the purchases at issue. Moreover, he emphasises that he had already been penalised by his temporary suspension from duties and by the impact of the disciplinary proceedings on both his professional and his private life.
201. The ECB contends that the seventh plea should be rejected as unfounded. In that regard, it takes the view that the applicant has interpreted the contested decision piecemeal, or even distorted it, since that decision, by a reference to point 34 of the Opinion of the Disciplinary Committee, took sufficient account of the extenuating circumstances in the present case. The Bank observes that the applicant makes general statements about the failure to have regard to certain extenuating circumstances without clearly identifying what those are, which raises the issue of the admissibility of such general statements. In any event, the Bank is of the opinion that it took into account all the relevant circumstances in the applicant’s case but points out that the existence of extenuating circumstances does not preclude, ipso jure, the Bank from being able to dismiss him.
202. According to the ECB, the risk of damage to the Bank’s external reputation as a result of the applicant’s conduct was obvious, all the more so since the applicant was unable to explain the whereabouts of most of the articles purchased under his supervision. As regards the argument that suspending the applicant from duties already constituted a very serious disciplinary measure which precluded his dismissal, the Bank points out that such a suspension from duties is not a disciplinary measure and that, in any event, the breakdown in the relationship of trust was complete in his case and warranted the disciplinary measure imposed.
Findings of the Tribunal
203. The Tribunal considers it appropriate to the deal with the seventh plea before the sixth.
– General considerations
204. As a preliminary point, it must be observed that the legality of any disciplinary measure assumes that the truth of the facts alleged against the person concerned is established (judgments in Daffix
v Commission, T‑12/94, EU:T:1997:208, paragraph 64; Tzikis
v Commission, T‑203/98, EU:T:2000:130, paragraph 51; and EH
v Commission, EU:F:2014:250, paragraph 90).
205. As regards the assessment of the gravity of the breaches found by the Disciplinary Committee against the member of staff and the choice of the disciplinary measure which appears, in the light of those breaches, to be the most fitting, these matters fall within the wide discretion of the Bank, unless the disciplinary measure imposed is disproportionate in relation to the facts shown (judgment in E
v Commission, EU:T:2001:175, paragraphs 85 and 86). Thus, according to established case-law on the Staff Regulations which may be transposed to the contractual context of the ECB, that institution has the power to reach a different assessment of the responsibility of its member of staff than that reached by its Disciplinary Committee, and subsequently to choose the disciplinary measure which it considers adequate in order to penalise the disciplinary faults upheld (see judgments in Y
v Court of Justice, EU:T:1996:94, paragraph 56, and Tzikis
v Commission, EU:T:2000:130, paragraph 48).
206. Once the truth of the facts is established, having regard to the wide discretion enjoyed by the Bank in disciplinary matters, judicial review must be restricted to verifying that there was no manifest error of assessment or misuse of powers (see, to that effect, judgments in X
v ECB, EU:T:2001:251, paragraphs 221 and 222, and EH
v Commission, EU:F:2014:250, paragraph 92).
207. As regards the proportionality of the disciplinary measure in relation to the seriousness of the facts upheld, the Tribunal must take into consideration the fact that the disciplinary measure is to be determined on the basis of an overall assessment by the Bank of all the concrete facts and matters appertaining to each individual case, inasmuch as, like the Staff Regulations, the body of rules applicable to staff of the ECB, in particular Article 45 of the Conditions of Employment, do not specify any fixed relationship between the disciplinary measures listed by them and the various types of breaches by staff of their professional obligations, and do not state the extent to which aggravating or extenuating circumstances are to be taken into account in the choice of disciplinary measure. Consequently, the examination by the first instance court is limited to a consideration of the question whether the weight attached by the Bank to such aggravating or extenuating circumstances is proportionate, and in that examination it cannot substitute its own value assessment for that of the Bank (see judgments in X
v ECB, EU:T:2001:251, paragraph 221; Afari
v ECB, EU:T:2004:77, paragraph 203; and BG
v Ombudsman, T‑406/12 P, EU:T:2014:273, paragraph 64); which has the task of choosing the disciplinary measure (judgment in Nijs
v Court of Auditors, F‑77/09, EU:F:2011:2, paragraph 132).
– The alleged breaches of professional duty
208. In the present case, the Tribunal notes that the applicant does not deny that he made the purchases of goods and services at issue, that is to say he does not challenge the version of the facts upheld, but denies that he was guilty of misconduct or any unlawful action in that regard; in other words he contests the characterisation of that conduct as breaches of professional duty.
209. It follows that, in that plea, the manifest error of assessment which the applicant imputes to the Executive Board concerns the finding made by the Disciplinary Committee, as to the breaches of professional duty and the assessment of their seriousness, on which the Executive Board relied in determining the disciplinary measure to be imposed on the applicant. In that regard, contrary to what is claimed by the applicant, the Opinion of the Disciplinary Committee expressly shows that the breaches of professional duty it identified consisted in the infringement of Article 4(a) of the Conditions of Employment, of Articles 2, 2.2, 4.1, 4.2 and 5.1 of the Code of Conduct and of the information in Chapters 7 and 8 of the Business Practices Handbook. It is also apparent from the contested decision that the Executive Board confirmed those findings by the Disciplinary Committee.
210. In this connection, the provisions of the body of rules applicable to staff of the ECB referred to in the Opinion of the Disciplinary Committee are intended to ensure that staff of the ECB, in their conduct, present a dignified image in keeping with the particularly correct and respectable behaviour which one is entitled to expect from members of staff of an international public institution, even those employed on a contractual basis (see judgments in Williams
v Court of Auditors, T‑146/94, EU:T:1996:34, paragraph 65, and N
v Commission
EU:T:1997:71, paragraph 127). Specifically, the obligation laid down in Article 4(a) of the Conditions of Employment that members of the Bank’s staff must ‘conduct themselves in a manner befitting their position and the character of the ECB as a [European Union] body’ is to be interpreted as imposing on them duties of, inter alia, loyalty and dignity similar to those which apply for officials of the European Union (see judgment in Afari
v ECB, EU:T:2004:77, paragraph 193).
211. The provisions of the Code of Conduct at issue in the present case are intended to make clear the obligations imposed on staff of the ECB by the duty of loyalty, such as the obligations to keep their superiors informed, behave in an exemplary fashion and ensure that the external reputation of the Bank is respected, and to set out the elementary rules applicable to any institution financed out of the public purse, namely that property and equipment of the institution must not be used except for and to the extent permitted by business needs and that staff are responsible for rationalising the purchases of equipment and using such equipment in the most effective fashion possible.
212. The provisions of the Business Practices Handbook at issue in the present case, for their part, reiterate the rules of sound financial management applicable in the identification of the needs and use of the budgets corresponding to the centralised budget centres, such as that of the Administrative Services Division, in connection with services delivered to other ECB Directorates.
213. So far as concerns the description of the breaches of professional duty upheld by the Disciplinary Committee against the applicant, set out in point 27 of the Opinion of the Disciplinary Committee, the Tribunal is of the opinion that the file shows that that committee was right to conclude that the applicant had infringed Article 4(a) of the Conditions of Employment, the Code of Conduct and the Business Practices Handbook.
214. In the light of the type, number and frequency of the purchases at issue, carried out over a period of over two and a half years, and the absence of any concrete and convincing explanation as to why such purchases were required for the legitimate needs of the Administrative Services Division, of which the applicant was the Head, the applicant cannot reasonably claim that he acted in line with the legitimate expectations of the Bank as formally laid down in its internal rules and that he did not cause the Bank to incur financial damage.
215. By way of example, the Tribunal observes that the purchase in individual units of IT material outside the institution’s group purchase policy, centralised at the level of DG Information Systems, necessarily resulted, as the Bank confirmed at the hearing, in that material being purchased at higher prices, for example as with the purchase of brand X computers, not officially used at the ECB at the material time. Another example of conduct inconsistent with the legitimate expectations of the Bank, as formally laid down in its internal rules, and which caused the Bank to incur financial damage was the failure to implement a tracking system for purchases which, inter alia, rendered it impossible to accurately locate a significant number of the goods acquired by the Administrative Services Division to which the complaints made against the applicant related. It is also strange for a member of staff of the institution to be allowed bring home and retain for a long period, as the applicant did, a significant number of IT and photographic items or even a car navigation system.
216. In this connection, the circumstance, to which the applicant drew attention in his offer to produce further evidence, that some items were subsequently found again is not such as to call in question the fact that, overall, he had purchased numerous items in contravention of the rules in force. Furthermore, the Tribunal finds, first, that that offer of evidence bore out the ECB’s description of the applicant’s office, namely that it looked like a warehouse on account of the large pile of items, moreover unlabelled, found there. That is attested to by the fact that boxes containing toys were discovered still in their packaging. It is therefore not surprising if the ECB was unable, in particular having regard to the technical nature of the equipment in question, to prepare exhaustive lists distinguishing the items on its premises from those whose whereabouts was unknown and from those belonging to the applicant and the ECB respectively. That may, consequently, explain why the number and type of missing items in the Article 8.3.2 report and the Opinion of the Disciplinary Committee may differ slightly from those in the OLAF report or in the Panel’s activity report, without those differences however indicating any manifest error of assessment. Broadly speaking, the applicant has not cast doubt on the fact that many items, purchased on his orders, were missing and that those purchases were made without a concrete and valid business reason. Secondly and in any event, the ECB did not impose any disciplinary measure on the applicant in the contested decision for theft of some of the equipment at issue.
217. Therefore, the Tribunal holds that the Disciplinary Committee did not commit any manifest error of assessment when it found, as reported in paragraphs 82 and 83 above, that the applicant had committed ‘deliberate, continued and long lasting’ breaches of his professional duty as a member of staff of the ECB. It characterised those breaches as ‘very serious and involv[ing], to a certain extent, a deliberate disrespect for ECB rules in place’. It follows that the Executive Board of the ECB was also able without committing any manifest error of assessment to endorse in the contested decision the assessments of the Disciplinary Committee, even if the Executive Board might have given further details in that decision as to the extent to which it shared those assessments.
218. It is now necessary to examine whether the Executive Board failed to take account or took insufficient account of the extenuating circumstances or of certain facts alleged by the applicant.
– Whether the extenuating circumstances were taken into account
219. In this connection, it must first of all be noted that it is apparent from the contested decision that the Executive Board took account of three extenuating circumstances mentioned in the Opinion of the Disciplinary Commit tee, namely, the internal control deficiencies within the Administrative Services Division before the applicant took up his post, the fact that the Administrative Services Division had few managers in proportion to its size and the applicant’s very good track record.
220. However, the applicant refers to the overall context in which he acted and claims that ‘many important facts and circumstances have been just ignored or not properly taken into consideration by the [ECB]’.
221. On that aspect, irrespective of the issue of the admissibility of this complaint, which has been raised by the Bank, the Tribunal finds that the elements randomly listed by the applicant are not capable of establishing a manifest error of assessment or a failure by the Executive Board of the ECB to take account of extenuating circumstances.
222. As regards the applicant’s arguments pointing to a failure of his hierarchical superiors in their supervisory role and of the Budget, Controlling and Organisation Division of DG Human Resources in the budgetary and financial monitoring of the Administrative Services Division after he took up his post, the Tribunal observes that any failure to act on the part of the applicant’s hierarchical superiors and the abovementioned Division cannot serve to justify the breaches allegedly committed by the applicant, who, in his capacity of manager, that is as Head of the Administrative Services Division, remains responsible for his own acts (see, to that effect, R. v Commission, EU:C:1985:324, paragraph 44; Z
v Parliament, T‑242/97, EU:T:1999:92, paragraph 115; and X
v ECB, EU:T:2001:251, paragraph 233).
223. In the same way, the applicant cannot put forward as an extenuating circumstance the fact that he was not alerted by DG Administration and DG Human Resources, and within these DGs by the Accounting and Procurement Division and the Budget, Controlling and Organisation Division respectively, that the purchases at issue were not permitted. Without it being necessary to go into detail regarding the various purchases made, the Tribunal finds that, having regard to the characteristics of some of them, such as the purchase of games consoles and software, the conclusion of mobile telephone contracts and the corresponding provision of mobile telephones to members of staff who were not permitted them under the Bank’s internal rules, or even the purchase of goods in order to reward staff in the Administrative Services Division, of which the applicant was the Head, the latter should have had serious doubts as to whether it was reasonable to make such purchases and whether his behaviour was compatible with the ECB’s clear rules, contained inter alia in Article 4(a) of the Conditions of Employment and in the Code of Conduct.
224. The fact that the applicant stopped the purchases of electronic photo frames when questioned on this matter by his hierarchical superiors, far from being an extenuating circumstance, should on the contrary have caused him to review his method of managing public money, a task with which he was entrusted in his capacity as Head of a division with an autonomous budget, in particular when he purchased IT material in individual units, in defiance of the group purchasing choices adopted by DG Information Systems, within whose remit this fell.
225. As regards the applicant’s professional performance which, in his view, enabled the Bank to save substantial sums, the Tribunal points out that, first, while the ECB is required, under Article 45 of the Conditions of Employment, to take account of ‘the conduct of the member of staff throughout the course of their career’, that is not necessarily equivalent to recognition of an extenuating circumstance (judgment in EH
v Commission, EU:F:2014:250, paragraph 119). Secondly, it could be legitimate for the Bank to consider the facts to be of such seriousness that, even if the applicant’s track record had been exceptional, that would have been of no consequence (see, to that effect, judgment in Yasse
v EIB, T‑141/97, EU:T:1999:177, paragraph 114). In particular, it cannot be accepted that, under the cover of helping to achieve substantial overall savings for the operational budget of an institution, a member of staff may consider himself to be free of the basic rules of sound budgetary and financial management on the ground that the purchases of goods and services at issue concern only small sums in relation to the budget for which he is responsible. Regardless of the sum in question, any public expenditure must be made in accordance with the applicable budgetary and accounting rules.
226. In respect of the applicant’s argument that he was not given targeted training on budget management and the procurement rules, the Tribunal considers it to be ineffective in that, even if it could be proved that the Bank did not provide its management staff with sufficient training, that potential failing did not allow the applicant to act in defiance of the express rules laid down by the ECB in its internal provisions.
227. The same is true of the applicant’s argument derived from his workload. Even though the Administrative Services Division had to deal with hundreds of weekly purchase orders, the applicant was assisted by a Deputy Head of Division. It is apparent from the file that both members of staff authorised questionable purchases and, in any event, the Tribunal takes the view that the weekly volume of purchases processed by the Administrative Services Division cannot justify the lack of judgment in the purchase of certain articles, especially where those articles clearly do not meet the legitimate needs of the service.
228. As regards the fact that other divisions of the ECB made purchases which were no more warranted that those in the present case, the Tribunal again points out that a member of staff may not profitably rely on the fact that no disciplinary proceedings have been initiated against one or several other members of staff in respect of facts similar to those of which he is accused in order to challenge the disciplinary measure imposed on him (see, to that effect, judgments in Williams
v Court of Auditors, EU:C:1985:297, paragraph 14, and de Compte
v Parliament, EU:T:1991:54, paragraph 170).
229. It follows from the foregoing that no manifest error of assessment is apparent from the contested decision as regards whether the facts at issue and the extenuating circumstances were taken into account. It is therefore necessary to examine whether, in accordance with the case-law applicable to disciplinary proceedings, the weight attached by the Bank to the aggravating or extenuating circumstances is proportionate, having regard to the fact that, in that examination, the Tribunal cannot substitute its own value assessments for those of the Bank.
– The proportionality of the disciplinary measure imposed
230. It must first of all be stated on this matter that, in the contested decision, the Executive Board took account of the extenuating circumstances accepted by the Disciplinary Committee but also upheld the aggravating circumstance mentioned in paragraph 87 above.
231. The Tribunal observes in this connection that it may be extracted from the body of rules applicable to ECB staff that a member of that staff owes a duty of loyalty to his institutional employer and that in consequence of this he must, and all the more so if, like the applicant, he is in a high grade, conduct himself in a manner that is beyond suspicion, in order that the relationship of trust between that institution and himself may at all times be maintained (judgment in N
v Commission, EU:T:1997:71, paragraph 129).
232. Having regard to the importance of the relationship of trust existing between the European Union and its staff, so far as concerns both the internal operation of the European Union and its external image, and given the general wording of the provisions of Article 4(a) of the Conditions of Employment and the Code of Conduct, to which the Opinion of the Disciplinary Committee refers, those provisions cover any circumstance or conduct which, in the light of his grade and functions and of the specific circumstances of the case, must reasonably be understood by the member of staff of the ECB as being such as to appear to third parties as likely to give rise to confusion as regards the interests pursued by the European Union which he is supposed to serve (see, by analogy, judgment in Gomes Moreira
v ECDC, F‑80/11, EU:F:2013:159, paragraph 63).
233. In particular, in the specific context of the Bank, a financial institution of the European Union acting, as an employer, within a contractual framework, the Tribunal must make an analysis of whether the acts which the member of staff is found to have committed are proportional to the disciplinary measure imposed in the light of the objectives to be met and the functions to be carried out by the Bank (see, to that effect, judgment in Yasse
v EIB, EU:T:1999:177, paragraph 108). On this aspect, the Tribunal indeed takes the view that the applicant, in his managerial function as Head of the Administrative Services Division, had enhanced responsibility for safeguarding the reputation and the financial interests of the Bank. Furthermore, in the light of its responsibility for the conduct of European Union monetary policy, the Bank in fact bases its external reputation on being a role model for an efficient and accountable administration, implying that all its staff are of ‘impeccable integrity’. This is indeed referred to in point 2.2 of the Code of Conduct, under which members of staff of the ECB ‘are expected to be mindful of the importance of their duties and responsibilities, to take into account the expectations of the public concerning their moral behaviour, to conduct themselves in a way that maintains and boosts the public’s trust in the ECB, and to contribute to the efficiency of the administration of the ECB’.
234. As the European Union has held, concerning a European Union financial institution (see judgment in Yasse
v EIB, EU:T:1999:177, paragraph 110), such obligations are of paramount importance in order to accomplish the objectives assigned to a banking institution and constitute an essential element of the conduct which must be observed by the staff of that institution in order to safeguard its independence and dignity.
235. In those circumstances, given the seriousness of the breaches of professional duty alleged, their deliberate nature and their repetition over a long period, as found by the Disciplinary Committee and the Executive Board, and given the level of integrity which the Bank legitimately expects from its staff and which constitutes a value judgment in respect of which the court may not substitute its assessment for that of the institution, the Tribunal finds, first, that the Executive Board could in the applicant’s case uphold the aggravating circumstance mentioned in the contested decision. Secondly, the Tribunal takes the view that the weight attached by the Bank to the aggravating or extenuating circumstances was proportionate in the present case.
236. Specifically, in the light of the requirements set out in the relevant case-law, the Bank was entitled to hold that, by the conduct at issue and notwithstanding the existence of extenuating circumstances, the applicant had irrevocably damaged the relationship of trust connecting him with the Bank. In a situation such as that presently before the Tribunal, the Bank could, under its broad discretion in the definition of its requirements in terms of the integrity of its staff, take the view that, despite the applicant’s wish to continue the employment relationship, that relationship of trust could not be restored, therefore rendering it more difficult, if not impossible, to accomplish the tasks assigned to the Bank by the European Union by working together with that member of staff (see, to that effect, judgment in Gomes Moreira
v ECDC, EU:F:2013:159, paragraph 67).
237. Even if, as the applicant argued at the hearing, the more lenient disciplinary measure proposed by the Disciplinary Committee would have reinstated him in a post no longer involving management of a centralised budget and, consequently, the performance of non-managerial duties would not necessarily have required such a high level of trust as that characterising his employment relationship with the Bank as Head of Division, the Tribunal finds that the ECB could, under its broad discretion and in the light of the contractual nature of the employment relationship connecting it with its member of staff, take the view that the disciplinary measure proposed by the Disciplinary Committee was insufficient having regard to the acts committed by a person who had been responsible for a sizeable centralised budget and that, given the deliberate nature and seriousness of the breaches of professional duty at issue by one of its managers, of whom exemplary conduct is expected, the relationship of trust had definitively broken down.
238. In view of the foregoing, the seventh plea must be rejected as unfounded.
The sixth plea, alleging misuse of powers by the Executive Board and infringement of Article 8.3.17 of the Staff Rules
Arguments of the parties
239. In this plea, the applicant claims that the Executive Board merely has the power to decide on the choice of the disciplinary measure to be applied in the light of the breaches of professional duty established by the Disciplinary Committee. However, the Executive Board does not have jurisdiction to decide on whether the facts are substantively established. He submits that, in the present case, the Executive Board distorted the Opinion of the Disciplinary Committee by coming in as ‘a fifth unofficial member of the Disciplinary Committee to implicitly put [its] weight in the balance of votes and decide that, in [its] view, the existence of a private interest [was] characterised’. The Executive Board found that there was pursuit of a personal interest in a situation where the Disciplinary Committee had declared that such an interest could not be proved. The misuse of power by the Executive Board therefore consists in it having decided itself that the facts were established, instead of restricting its decision to the appropriate disciplinary measure.
240. The ECB contends that the sixth plea must be rejected as manifestly unfounded, observing that it is clear merely from reading the contested decision that the Executive Board did not distort or otherwise change the findings as to the facts and the legal analysis of the Disciplinary Committee.
Findings of the Tribunal
241. Under Article 8.3.15 of the Staff Rules, the Disciplinary Committee delivers ‘a final opinion signed by all members on whether the facts are established, whether they constitute ... breach[es] of professional duties and on any disciplinary measure’ and, under Article 8.3.17 of those Rules, ‘[t]he Executive Board shall decide on the most appropriate disciplinary measure [giving] due consideration to the Disciplinary Committee’s recommendations but shall not be bound by them’.
242. In the present case, irrespective of whether the jurisdiction of the Executive Board is restricted to determining the disciplinary measure to be imposed, the Tribunal finds that the applicant has not demonstrated how the Executive Board distorted the facts as they were established by the Disciplinary Committee. The Executive Board based its decision on the version of the facts upheld by the Disciplinary Committee and on the latter’s findings as to the breaches by the applicant of his professional duty.
243. It is, however, apparent from the contested decision that the Executive Board considered, more explicitly than the Disciplinary Committee in its Opinion yet without overstepping the bounds of its discretion in disciplinary matters, including so far as value judgments are concerned, that the fact that the applicant committed the breaches of professional duty at issue while in a management post entailing a special obligation to safeguard the Bank’s reputation and financial interests constituted an aggravating circumstance. The Executive Board also set out the standard of integrity it expects from its staff, which clearly falls within its discretion in this area. The same is true of the finding that there was a breakdown in the relationship of trust which the Bank considers it necessary to have with its staff. Contrary to what the applicant maintains, in order to establish such a breakdown the hypothesis put forward by the Disciplinary Committee, relating to the fact that there was pursuit of a personal interest, need not necessarily be fulfilled.
244. In fact, the applicant’s line of argument, were it to be followed, would effectively preclude the Executive Board from adopting any disciplinary measure different to that advocated by the Disciplinary Committee and, ultimately, would be tantamount to holding that the Disciplinary Committee is not an advisory body but a decision-making body.
245. In order to be able to determine the appropriate disciplinary measure, the Executive Board must form a view on both the extenuating circumstances and the aggravating circumstances in the applicant’s case, as is apparent from settled case-law on disciplinary matters, according to which the appointing authority has the power, distinct from that exercised by the Disciplinary Committee, to assess the liability of the official and subsequently to choose the disciplinary measure which it considers appropriate for the disciplinary offences found against him (judgment in Tzikis
v Commission, EU:T:2000:130, paragraph 48), it being noted that the court may not substitute its own value assessment for that made by the Bank in that regard and or override the Bank’s choice of disciplinary measure (judgment in EH
v Commission, EU::2014:250, paragraph 93).
246. In view of the foregoing and of the fact that the Tribunal has not found any evidence supporting a finding or even a suspicion of misuse of powers, the sixth plea must be rejected as manifestly unfounded.
The eighth plea, alleging the illegality of Articles 44 and 45 of the Conditions of Employment and of Article 8.3 of the Staff Rules having regard to the freedom of association and the right to collective bargaining enshrined in Article 28 of the Charter
Arguments of the parties
247. By this plea, the applicant submits that the Conditions of Employment and the Staff Rules, including their provisions on disciplinary proceedings, are illegal, first, ‘owing to violation of [the] principle of democracy, [the principle of the] separation of power[s] and ... the principle that secondary legislators have to act within the bounds set by the primary legislator’, and, secondly, because in their adoption the principles of social dialogue, respect of the freedom of association and the right to collective bargaining were not observed. In particular, he claims that the ECB Governing Council is ‘clearly executive and not [a] legislative power of the [European] Union’. Consequently, he contests the power of the Executive Board and the Governing Council to adopt the Conditions of Employment, a fortiori
after merely consulting the staff representatives.
248. The Bank contends that the eighth plea should be rejected as in part inadmissible and, in any event, as unfounded, while drawing attention to its functional autonomy in this field.
Findings of the Tribunal
249. Article 36.2 of the Protocol on Statute of the ESCB and of the ECB forms part of a protocol adopted in the context of the Treaty of Maastricht and thus constitutes a provision of primary law which could provide for a derogation to Article 283 EC, now Article 336 TFEU (see, to that effect, judgment in X
v ECB, EU:T:2001:251, paragraph 38).
250. In that regard, it is apparent from Article 21 of the Rules of Procedure of the ECB, adopted by the Governing Council, that the latter could legally delegate to the Executive Board the power, which was originally the Governing Council’s prerogative, to adopt the Conditions of Employment, and that it could also confer on the Executive Board the power to define the implementing conditions for the Conditions of Employment, namely the power to adopt the Staff Rules. In this connection, no provision formally prohibits the delegation in question and, in addition, the decision to delegate was taken on the basis of a provision of primary law in respect of which the European Union judicature has already indicated that it implied the power for the Governing Council to delegate the task of laying down the Conditions of Employment (see judgment in X
v ECB, EU:T:2001:251, paragraphs 100 to 104).
251. In the same way, contrary to the applicant’s assertions, the ECB was entitled, pursuant to Article 36.1 of the Protocol on the Statute of the ESCB and of the ECB, to provide in the Conditions of Employment for a disciplinary regime enabling it, inter alia, in the event of a breach by one of its staff of the obligations imposed by his employment contract, to take such measures as might be necessary in the light of the responsibilities and objectives assigned to it (judgment in X
v ECB, EU:T:2001:251, paragraph 63).
252. Furthermore, the Tribunal has already held, in response to similarly expressed arguments and without being contradicted on this aspect on appeal, that, at the very most, Article 6(2) of the European Social Charter, signed in Turin on 18 October 1961, ‘encourages, but does not make mandatory, the promotion of “machinery for voluntary negotiations between employers or employers’ organisations and workers’ organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements”’ and that, as for Article 28 of the Charter and Article 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms, ‘although they enshrine the right to freedom of association, including the right for workers to form trade unions to protect their economic and social interests, their provisions do not include any obligation to introduce a collective bargaining procedure or to confer on those trade unions any joint decision-making power for the purpose of developing conditions of employment for workers’ (judgment in Heath
v ECB, F‑121/10, EU:F:2011:174, paragraph 121).
253. Thus, the Conditions of Employment and Staff Rules could be adopted unilaterally by the ECB and could be amended after consultation with the Staff Committee, given that there is no obligation to act in this area by means of collective agreements signed by the ECB and the trade union organisations representing its staff. As an EU institution to which Article 13 TEU relates and pursuant to the Protocol on the Statute of the ESCB and of the ECB, the ECB is authorised to lay down, by way of regulation, provisions applicable to its staff (see judgment in Cerafogli
v ECB, F‑84/08, EU:F:2010:134, paragraph 47).
254. It is clear from the above that the eighth plea must be rejected as manifestly unfounded.
255. Since all the pleas for annulment of the contested decision have been rejected, the claim for annulment is, consequently, unfounded.
3. The claim for damages
256. Even if, formally, the applicant submits his claim for damages in connection with not only the contested decision but also the conduct of the ECB, the Tribunal finds that his claim for damages is clearly linked with his claim for annulment of the contested decision. Since the latter has been dismissed as unfounded, the claim for damages must likewise be dismissed.
257. For the sake of completeness the Tribunal observes that, in any event, the applicant has in no way proved the existence of the material and non-material damage he allegedly suffered as a result of conduct of the ECB taking place outside the context of the adoption of the contested decision.
258. In the light of all the above considerations, the action must be dismissed in its entirety.
Costs
259. Pursuant to Article 101 of the Rules of Procedure, without prejudice to the other provisions of Chapter 8 of Title 2 of those Rules, the unsuccessful party is bear his own costs and is to be ordered to pay the costs incurred by the other party if they have been applied for in the other party’s pleadings. Under Article 102(1) of those Rules, if equity so requires, the Tribunal may decide that an unsuccessful party is to bear his own costs, but is to pay only part of the costs incurred by the other party, or even that he is not to be ordered to pay any costs.
260. It follows from the grounds set out in the present judgment that the applicant has been unsuccessful in his action. Admittedly, he claimed that the ECB should be ordered to pay the costs, even if the action were to be dismissed, but he does not put forward any arguments in support of that claim. The applicant has merely pointed out, as a criticism, that the Bank has automatically had recourse to the services of a lawyer to represent it before the Tribunal, even though it has a legal service with persons specialising in litigation to represent it in disputes with its staff. In this connection, the Tribunal observes that, as a general rule, the EU institutions, including the ECB, are free to have recourse to the assistance of a lawyer without being required to show that such assistance is objectively warranted (see orders in Commission
v Kallianos, C-323/06 P-DEP, EU:C:2012:49, paragraphs 10 and 11; Marcuccio
v Commission, T‑44/10 P-DEP, EU:T:2013:513, paragraphs 29 and 30; and Eklund
v Commission, F-57/11 DEP, EU:F:2014:254, paragraphs 34 and 35).
261. Consequently, inasmuch as the ECB has expressly requested in its claims that the applicant be ordered to pay the costs and since, moreover, the circumstances of the case do not warrant the application of Article 102(1) of the Rules of Procedure, the applicant must bear his own costs and be ordered to pay the costs incurred by the ECB.
Operative part
On those grounds,
THE CIVIL SERVICE TRIBUNAL (First Chamber)
hereby:
1. Dismisses the action;
2. Declares that AX is to bear his own costs and orders him to pay the costs incurred by the European Central Bank.