JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

13 December 2012

Joined Cases F‑7/11 and F‑60/11

AX

v

European Central Bank (ECB)

(Civil service — ECB Staff — Disciplinary proceedings — Suspension of a staff member without reduction of his basic salary — Withdrawal of a decision — Rights of the defence — Access to the file — Statement of reasons — Reasons for a decision — Allegation of breach of professional duties — Serious misconduct)

Application: 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 the FEU Treaty, whereby AX seeks, in the first action, registered as Case F‑7/11, and in the second, registered as Case F‑60/11, principally, annulment of the decisions of the European Central Bank (ECB or ‘the Bank’) of 4 August 2010 and 23 November 2010, respectively, suspending him.

Held: The actions in Joined Cases F‑7/11 and F‑60/11 are dismissed. The applicant is to bear his own costs and is ordered to pay the costs incurred by the ECB.

Summary

1. Actions brought by officials — Interest in bringing proceedings — Action brought against an act which has been repealed — Respective effects of repeal and withdrawal

(Staff Regulations, Arts 90 and 91)

2. Actions brought by officials — Members of the staff of the European Central Bank — Special appeal — Action against the decision rejecting that special appeal — Admissibility

(Protocol on the Statute of the European System of Central Banks and of the European Central Bank, Art. 36.2; Conditions of Employment for Staff of the European Central Bank, Art. 42)

3. Officials — Members of the staff of the European Central Bank — Disciplinary measures — Suspension of a member of staff — Decision of the administration adopted without first hearing the member of staff concerned — Absence of hearing attributable to the member of staff concerned — Legality

(Conditions of Employment for Staff of the European Central Bank, Art. 43)

4. Officials — Members of the staff of the European Central Bank — Disciplinary measures — Suspension of a member of staff — Obligation to reinstate — Limits

(Conditions of Employment for Staff of the European Central Bank, Art. 43)

5. Officials — Members of the staff of the European Central Bank — Disciplinary measures — Suspension of a member of staff — Breach of the principle of the presumption of innocence — None

(Conditions of Employment for Staff of the European Central Bank, Art. 43)

6. Officials — Members of the staff of the European Central Bank — Disciplinary measures — Suspension of a member of staff — Right of access to the file relating to the investigation into the activities of the member of staff concerned — Limits — Breach of fundamental rights — None

(Charter of Fundamental Rights of the European Union, Arts 41(2)(b) and 48(1); Conditions of Employment for Staff of the European Central Bank, Art. 43)

7. Officials — Members of the staff of the European Central Bank — Disciplinary measures — Suspension of a member of staff — Requirement for sufficiently probable allegations of a serious breach of the obligations of that member of staff — Judicial review — Limits

(Conditions of Employment for Staff of the European Central Bank, Art. 43)

8. Judicial proceedings — Costs — Burden — Consideration of the requirements of equity — Order that costs be paid by the unsuccessful party — Defendant institution having employed the services of a lawyer — Circumstance not justifying on order that the institution pay the relevant fees

(Statute of the Court of Justice, Art. 19; Rules of Procedure of the Civil Service Tribunal, Art. 87(2))

1. An applicant retains an interest in bringing proceedings against an act which has been repealed since, unlike a withdrawal, a repeal allows, for the addressees of the act concerned, the effects produced by that act to continue for the period during which that act has been in force.

(see para. 77)

See:

12 February 1960, 16/59, 17/59 and 18/59 Geitling and Others v High Authority

13 December 1995, T‑481/93 and T‑484/93 Exporteurs in Levende Varkens and Others v Commission, paras 46 to 48

2. A special appeal based on Articles 36.2 of the Protocol on the Statute of the European System of Central Banks and of the European Central Bank and 42 of the conditions of employment for the staff of the Bank forms an integral part of a complex procedure and is only a precondition for bringing an action. In those circumstances, claims formally directed against the dismissal of a special appeal must be regarded as having the effect of bringing before the court the act with adverse effect against which the appeal was submitted, except where the scope of the dismissal of the special appeal is different from that of the act against which that special appeal has been brought.

(see para. 78)

See:

25 October 2006, T‑281/04 Staboli v Commission, para. 26

18 May 2006, F‑13/05 Corvoisier and Others v ECB, para. 25

21 September 2011, T‑325/09 P Adjemian and Others v Commission, para. 32

3. Where the administration must hear a person before adopting a decision, it is not required to postpone that hearing indefinitely until the person concerned is able to attend.

Therefore, in the absence of a rule requiring the administration to revoke a decision before commencing a new procedure to replace it, a member of the staff of the Bank cannot refuse, in breach of the duty to cooperate in good faith that binds all members of staff in the service of the European Union with regard to its administration, to take part in the hearing organised by the Bank. The fact that an invitation to attend a hearing has been declined may be considered to be an exceptional circumstance justifying the adoption of a suspension decision without the interested person having been heard. In that regard, the Bank, when it adopts that decision, does not infringe Article 43 of the conditions of employment or, therefore, the rights of the defence, according to which any person against whom proceedings have been initiated which are liable to culminate in a measure adversely affecting that person, must be given the opportunity to put their case properly.

(see paras 90-91)

See:

5 December 2002, T‑277/01 Stevens v Commission, para. 41; 16 March 2004, T‑11/03 Afari v ECB, para. 192

4. Until such time as the decision to suspend a member of the staff of the Bank, in the context of disciplinary proceedings, has been annulled by the Courts of the European Union, the administration has no obligation to reinstate him. Accordingly, unless the member of staff concerned establishes an abuse of process, the administration cannot be accused of illegality on the basis that it acted in such a way that the member of staff remained suspended from his duties.

(see para. 92)

5. A breach of the presumption of innocence can be found only if there is evidence that demonstrates that the administration had decided, from the beginning of a disciplinary procedure, to impose, in any event, a penalty on the person concerned.

That does not apply to the situation of a member of the staff of the Bank who has been suspended in the context of a disciplinary procedure. The possibility offered by Article 43 of the conditions of employment of the staff of the Bank to suspend a person is not intended to impose a sanction on that person, but to allow the administration to adopt a precautionary measure to ensure that that person does not interfere with the ongoing inquiry.

(see para. 93)

See:

18 October 2001, T‑333/99 X v ECB, para. 151; 9 July 2000, T‑21/01 Zavvos v Commission, para. 341

6. While the administration is under an obligation to communicate to the person concerned the documents on which it expressly relies in order to adopt a decision adversely affecting him, failure to disclose those documents may result in annulment of the decision concerned only if the charges against him can be proved only by reference to those documents. As regards a decision of the Bank to suspend a member of staff, Article 43 of the conditions of employment for the staff of the Bank, which provides the basis for the Bank’s power to adopt a suspension measure, makes the application of that provision subject only to the existence, on the part of the member of staff concerned, of allegations of serious breach of his professional duties which are sufficiently probable. In that regard, where there are allegations relating to the purchase of items of dubious professional usefulness, the whereabouts of which cannot be clearly established, the administration cannot be criticised for not having communicated to the person concerned the documents revealing the progress made in the investigation.

Likewise, the Bank does not breach Article 41(2)(b) of the Charter of Fundamental Rights of the European Union (‘the Charter’), or even the rights of defence of a member of the its staff, by refusing the latter access to the file relating to the investigation before the adoption of the suspension decision.

It is true that, having regard to the provisions of Article 41(2)(b) of the Charter, a member of staff of the Bank is entitled to have access to information held by the ECB that might enable him to understand the substance of the allegations of serious breach of his professional duties, so that he can demonstrate, inter alia, that the conduct referred to does not fall within the scope of his responsibility, that it is not sufficiently serious to justify a suspension decision, that it is not sufficiently probable or that the allegations are manifestly unfounded, so that the suspension of the member of staff in question is unlawful. Moreover, such an interpretation of Article 43 of the conditions of employment of the Bank is also consistent with the principle of the presumption of innocence enshrined, with regard to accused persons, in Article 48(1) of the Charter.

However, in the very words of Article 41(2)(b) of the Charter, the right of every person to have access to his or her file can only be exercised ‘while respecting the legitimate interests of confidentiality and of professional and business secrecy’. The legitimate interests which might justify confidentiality include the need to protect the effectiveness of investigations. The effectiveness of an investigation might be diminished if access to all the documents connected with it could be given to the persons concerned while it is still ongoing.

(see paras 100-03, 105)

See:

7 January 2004, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others v Commission, paras 73 to 75

3 July 2001, T‑24/98 and T‑241/99 E v Commission, para. 92; 12 September 2007, T‑259/03 Nikolaou v Commission, para. 242; 8 July 2008, T‑48/05 Franchet and Byk v Commission, para. 255

30 November 2009 F‑80/08 Wenig v Commission, para. 67

7. Although Article 43 of the conditions of employment for the staff of the Bank make the application of that provision subject only to the existence, on the part of the member of staff concerned, of allegations of a serious breach of his professional obligations, it is none the less necessary, in order to suspend a member of staff, that the conduct alleged against him be sufficiently probable.

Having regard to the broad discretion enjoyed by the Bank under Article 43 of the conditions of employment to adopt a suspension measure, where a member of staff is the subject of allegations of a sufficiently probable breach of his duties, it is not for the Tribunal to determine whether other measures would have been more appropriate.

(see paras 137, 149)

See:

Wenig v Commission, para. 67

8. In the context of the consideration of the requirements of equity under Article 87(2) of the Rules of Procedure of the Civil Service Tribunal, to accept that an applicant should not pay the fees and expenses of the defendant institution’s lawyer on the ground that it could have been represented by its legal service would have the effect of reducing the effectiveness for that institution of Article 19 of the Court of Justice, according to which the institutions — a term which must be understood as referring, more broadly, to the other organs and bodies of the European Union — can be represented by an adviser or a lawyer. In any event, it must be noted that such an argument relates to whether the costs incurred by the ECB were essential, an issue which may, if appropriate, be raised during a taxation of costs procedure, but which is not relevant to the question whether an unsuccessful party must be ordered to pay all or some of the costs.

(see para. 164)

See:

27 September 2011, F‑55/08 DEP De Nicola v EIB, para. 26