JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

18 October 2001

Case T-333/99

X

v

European Central Bank

‛Officials — Servants of the European Central Bank — Jurisdiction of the Court of First Instance — Legality of conditions of employment — Rights of the defence — Dismissal — Harassment — Misuse of the internet’

Full text in German II-921

Application for:

annulment of the decision of the Executive Board of the European Central Bank of 9 November 1999 to continue the suspension of the applicant and to withhold one half of his basic salary, and of the decision of 18 November 1999 dismissing the applicant.

Held:

The action is dismissed. The parties are to bear their own costs.

Summary

Officials — Staff of the European Central Bank — Disciplinaiy measures — Principle of non bis in idem — Principle must be respected even where there is no written rule — Suspension of a member of staff under Article 44 of the Conditions of Employment — Provisional measure having nothing to do with the appreciation of the principle

Officials — Staff of the European Central Bank — Obligation relating to conduct laid down in Article 4(a) of the Conditions of Employment — Obligation exists even in the absence of an express stipulation in the contract of employment

The Court of First Instance has jurisdiction to hear disputes between the European Central Bank and its staff for the purposes of Article 36.2 of the Protocol on the Statute of the European System of Central Banks and of the European Central Bank. The term ‘the Court of Justice’ in that provision must be interpreted as referring to the Community judicature as a whole within the meaning of Article 7 EC and thus as including the Court of First Instance. Although Article 36.2 of the Protocol on the Statute of the European System of Central Banks and of the European Central Bank forms part of a protocol adopted in the context of the Treaty of Maastricht and thus constitutes a provision of primary law, the legal terms employed in that provision must, in case of doubt, be interpreted in the light of the general body of relevant legal rules in force at the time of its adoption, inasmuch as that will ensure that there is no conflict with a fundamental principle of Community law, such as the principle of equal treatment. Were one to interpret that provision as precluding actions by certain staff against certain institutions or organs - in this instance, by staff of the European Central Bank against the European Central Bank - from the improved system of legal remedies introduced by Decision 88/591 establishing a Court of First Instance of the European Communities for the same type of dispute, that departure from the general system of legal remedies, for which there is no objective justification, would be in breach of the principle of equal treatment and therefore in breach of a fundamental principle of Community law. (see paras 38, 40-41)

It follows from Article 42 of the Conditions of Employment for Staff of the European Central Bank that the jurisdiction of the Court of First Instance to hear a dispute between the Bank and a member or former member of its staff is restricted to an examination of the legality of a measure or decision, unless the dispute is of a financial nature, in which case the Court of First Instance has unlimited jurisdiction. It follows that an application requesting the Court to order the Bank to continue employing the applicant is inadmissible whereas an application under Article 44 of the Conditions of Employment of the Bank requesting the Court to order the Bank to pay the applicant the amount of salary withheld is clearly of a financial nature and therefore admissible. (see paras 47-48, 51) See: T-168/97 Varas Carrión v Council [1999] ECRSC I-A-143 and II-761, para. 26; T-197/98 Rudolph v Commission [2000] ECRSC I-A-55 and II-241, paras 32 and 33 and the case-law cited

The employment relationship between the European Central Bank and its members of staff is of a contractual nature, and not of the type existing between the public service and its officials. (see para. 61)

The Governing Council of the European Central Bank was entitled, pursuant to Article 36.1 of the Protocol on the Statute of the European System of Central Banks and of the European Central Bank, to provide in the Conditions of Employment for Staff for a disciplinary regime enabling it inter alia, in the event of noncompliance by one of its staff with the obligations imposed by the employment contract, to take such measures as might be necessary in the light of the responsibilities and objectives assigned to it. (see para. 63)

An obligation of conduct such as the one laid down in Article 4(a) of the Conditions of Employment for Staff of the European Central Bank constitutes a basic element of the principle, common to the laws of the overwhelming majority of the Member States, that contracts, and employment contracts in particular, must be performed in good faith. Given its fundamental import, it is so clearly self-evident as to be manifestly applicable, even in the absence of any express stipulation in the employment contract. (see para. 83)

Delegation of implementing powers is lawful under Community law, provided that it is not formally prohibited by any legislative provision. (see para. 102) See: 9/56 Meroni v High Authority [1958] ECR 133

The delegation of the power to determine the terms on which the Conditions of Employment for Staff of the European Central Bank are to be implemented effected by the Governing Council in favour of the Bank's Executive Board in Article 21.3 of the Rules of Procedure of the European Central Bank is lawful. First, that delegation is not formally prohibited by any legislative provision, and a delegation of implementing powers is lawful under Community law, provided that it is not formally prohibited by any legislative provision. Second, Article 12.3 of the Protocol on the Statute of the European System of Central Banks and of the European Central Bank - a provision of primary law - empowers the Governing Council to adopt Rules of Procedure determining the internal organisation of the European Central Bank, which entails the power to delegate for that purpose the task of laying down the conditions of employment of its staff. (see paras 102-104) See: Meroni v High Authority, cited above

Although it is accepted that the member of an institution who, as the appointing authority, has taken a decision adversely affecting a staff member is not obliged to refrain from taking part in the collective decision-making process conducted by the members of that institution in relation to a complaint lodged by the staff member against the decision in issue, a member of an institution or body such as the European Central Bank cannot have sole power to determine a complaint against a decision adopted collectively by the members of that institution or body and thus to assess on his own the complaints made against a collective decision in which he has taken part. (see para. 138) See: 101/79 Vecchioliv Commission [1980] ECR 3069, para. 31

According to the broad logic of the Protocol on the Statute of the European System of Central Banks and of the European Central Bank and the Conditions of Employment for Staff of the European Central Bank, there exists no authority competent to conduct the two-stage procedure for review of decisions of the Bank's Executive Board, as provided for by Article 41 of the Conditions of Employment. Those decisions are not therefore covered by the procedure laid down by that article, even though it contains no indication in that regard. That absence of any review procedure is compensated for by the fact that the decisions in question are adopted, in accordance with Article 43 of the Conditions of Employment, following a procedure in the course of which each party is heard and in which the staff member concerned must be given the opportunity to comment on the complaints made against him. (see paras 143-145)

The ne bis in idem principle constitutes a general principle of Community law which is applicable regardless of any legislative provision. It is therefore applicable to disciplinary procedures instituted at the European Central Bank even though, by contrast with the Staff Regulations of Officials, the Bank's Conditions of Employment - Article 86(3) of which provides that a ‘single offence shall not give rise to more than one disciplinary measure’ - do not contain any provision requiring that principle to be respected. The suspension measure provided for in the third paragraph of Article 44 of the Conditions of Employment for Staff of the European Central Bank, which is based on the fourth paragraph of Article 88 of the Staff Regulations of Officials, is of a provisional nature and has nothing to do with the application of that principle. (see paras 149 and 151) See: 18/65 and 35/65 Gutmann v Commission [1966] ECR 103

The requirement that an official must be informed in advance of the complaints against him and must have been given a reasonable time in which to prepare his defence also applies, mutatis mutandis, even in the absence of any rules to that effect in the Staff Rules, to a staff member of the European Central Bank against whom disciplinary proceedings are brought, a fortiori since Article 43 of the Conditions of Employment for Staff of the European Central Bank provides, in the same way as Article 87 of the Staff Regulations of Officials, that ‘the said procedure shall ensure that no member of staff may be subjected to a disciplinary measure without an opportunity to reply to the relevant charges first being granted’. (see paras 176-177) See: 319/85 Misset v Council [1988] ECR 1861, para. 7

Respect for the rights of the defence in any proceedings against any person which may culminate in a measure adversely affecting him constitutes a fundamental principle of Community law which must be observed even in the absence of any express provision to that end. A decision suspending a member of staff of the European Central Bank, adopted pursuant to Article 44 of the Conditions of Employment for Staff of the Bank, constitutes a measure adversely affecting the person concerned and the rights of the defence must be respected in the adoption of such a decision. Save where the existence of special circumstances has been duly established, such a decision may not be adopted until the member of staff in question has been given a proper opportunity to put forward his view concerning the matters alleged against him and on which the competent authority is proposing to base that decision. Only in special circumstances may it prove impossible in practice, or incompatible with the interests of the service, to proceed to a hearing prior to the adoption of a suspension measure. In such circumstances, the requirements arising from the principle of respect for the rights of the defence may be satisfied by hearing the staff member concerned as rapidly as possible after the suspension decision has been adopted. (see para. 183) See: T-211/98 F v Commission [2000] ECRSC I-A-107 and II-471, paras 27, 28, 30 to 32 and 34