JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(First Chamber)

17 March 2015

AX

v

European Central Bank (ECB)

‛Civil service — ECB staff — Disciplinary proceedings — Disciplinary measure — Dismissal — Rights of the defence — Access to the disciplinary file — Access to information and documents on other divisions — Reasonable time — Lawfulness of the composition of the Disciplinary Committee — Advisory role of the Disciplinary Committee — Stricter disciplinary measure than that recommended — Obligation to state reasons — Management of a division — Manifest error of assessment — Proportionality of the disciplinary measure — Extenuating circumstances — Aggravating circumstances — Objection of illegality’

Application:

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, in which 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.

Held:

The action is dismissed. AX is to bear his own costs and is ordered to pay the costs incurred by the European Central Bank.

Summary

Officials — Staff of the European Central Bank — Disciplinary regime — Disciplinary proceedings — Observance of the rights of the defence — Obligation to communicate to the person concerned a report drawn up by an inquiry panel before the disciplinary proceedings were initiated and not included in the disciplinary file — None

Since, under Article 9(c) of the Conditions of Employment for Staff of the European Central Bank, in interpreting the rights and obligations under those Conditions of Employment, due regard must be shown for the authoritative principles of the regulations, rules and case-law which apply to the staff of the EU institutions, the European Union judicature may, 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, apply by analogy, if necessary, the case-law developed in connection with the disciplinary procedure under the Staff Regulations. (see paras 102, 103)

Although the provisions applicable to staff of the ECB provide a 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 staff member concerned of that latter type of information or ‘reconstituted’ documents, which as a general rule are not considered part of the disciplinary file. 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 of Fundamental Rights of the European Union 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 staff member concerned 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. However, the requirement for the person concerned 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. In this connection, 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 may unilaterally exclude from the administrative procedure documents which might be useful for the purposes of the staff member’s defence. (see paras 114, 115, 120) See: Judgments in ICI v Commission, T‑36/91, EU:T:1995:118, para. 93; N v Commission, T‑273/94, EU:T:1997:71, para. 89; Eyckeler & Malt v Commission, T‑42/96, EU:T:1998:40, para. 81, and 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, paras 179 and 185

The responsibility of a member of staff of the ECB against whom disciplinary proceedings have been initiated 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 paras 123, 228) See: Judgments in Williams v Court of Auditors, 134/84, EU:C:1985:297, para. 14, and de Compte v Parliament, C‑326/91 P, EU:C:1994:218, para. 52 Judgment in de Compte v Parliament, T‑26/89, EU:T:1991:54, para. 170

The activity report of an Inquiry Panel set up by the Executive Board of the ECB as a result of allegations by a whistleblower who first disclosed certain problems in a division of the institution to the administration cannot be regarded as a report endorsed by the Bank, unlike a disciplinary report under Article 8.3.2 of the Staff Rules, or be deemed to constitute a reasoned report within the meaning of Article 6(14) of Circular No 1/2006 setting out the rules governing ECB internal administrative inquiries. Taking account of the preliminary nature of the findings and conclusions which the Panel’s activity report might potentially contain and the legitimate interest in protecting the anonymity of the whistleblower, the report is in the nature of a preparatory note, drafted before the disciplinary proceedings are initiated. Consequently, that preparatory note, as an internal document, is not part of the disciplinary file and, pursuant to the Staff Rules, it is not necessary to communicate it to a staff member facing disciplinary proceedings in order to guarantee his rights of the defence. Consequently, the Disciplinary Committee does not exercise its discretion on that matter incorrectly when it considers that, in as much as the disciplinary file contains sufficient information both as regards the acts of which the staff member is accused and in support of his arguments in defence, the inclusion in the file of that document containing the Panel’s interim assessments is not of any added value and would unduly delay the proceedings. Moreover, it cannot be held, because the Disciplinary Committee agreed to ask the Bank for that report and to examine it in order to be able to respond to the staff member’s request for access, 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. In any event, although the administration is obliged to communicate to a person facing disciplinary proceedings the documents on which it expressly relies in order to adopt a decision adversely affecting that person and although, 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 disciplinary decision unless the administration’s objections can be proved only by reference to those latter documents, that is to say, unless the failure to disclose the documents identified by the person concerned could have influenced the course taken by the disciplinary proceedings and the content of the disciplinary decision to that person’s detriment. (see paras 135-139) See: Judgments in R. v Commission, 255/83 and 256/83, EU:C:1985:324, para. 24, and Tzoanos v Commission, C‑191/98 P, EU:C:1999:565, paras 34 and 35 Judgments in Y v Court of Justice, T‑500/93, EU:T:1996:94, para. 45; N v Commission, EU:T:1997:71, para. 92, and E v Commission, T‑24/98 and T‑241/99, EU:T:2001:175, paras 92 and 93

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 of Officials on the Disciplinary Board provided for in respect of officials and other members of staff of the European Union. In that regard, even if the members appointed by the administration and those appointed by the Staff Committee under Article 8.3.5 of the ECB Staff Rules are not as equally balanced as in the corresponding provisions of the Staff Regulations, there are, in the ECB context, which is 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: (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 the deliberations and proceedings of the Disciplinary Committee are to be treated as personal and confidential and that the members of the Disciplinary Committee are to act in their personal capacity and to 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. 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 that he exercises or is able to exercise ultimate power over any member of staff and, therefore, over the deliberations of the Disciplinary Committee. Moreover, it is 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. Accordingly, it cannot be objected that one of the Committee members appointed by the administration interviewed a staff member facing disciplinary proceedings at his hearing before the Disciplinary Committee in a way he perceived as accusatory. Such conduct, even if it were established, would not necessarily be a sign of bias but might be explained by a wish to contribute openly to the discussion by confronting the person concerned with the accusations made against him. Even though that person 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. 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. Furthermore, 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 any event, the judicial review conducted by the European Union judicature in the context of an action on the basis of Article 36.2 of the Protocol on the Statute of the European System of Central Banks and of the European Central Bank 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 and the case-law of the European Court of Human Rights, and makes it possible to rectify any failures and inadequacies in the composition of the Disciplinary Committee. (see paras 148, 150-157) See: Judgments in X v ECB, T‑333/99, EU:T:2001:251; Onidi v Commission, T‑197/00, EU:T:2002:135, para. 132; Zavvos v Commission, T‑21/01, EU:T:2002:177, para. 336, and Giannini v Commission, T‑100/04, EU:T:2008:68, para. 223 Judgment in Andreasen v Commission, T‑17/08 P, EU:T:2010:374, para. 145

With regard to the disciplinary proceedings applicable to members of the ECB’s staff, 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 the disciplinary proceedings, to impose in any event a disciplinary measure on the person concerned, regardless of the explanations provided by that person. In this connection, the fact that two members of the Disciplinary Committee expressed the view that the reason behind the alleged breaches was the pursuit by the person concerned of his 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. Likewise, the fact that the Executive Board decided 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. (see paras 162, 166, 167) See: Judgment in Pessoa e Costa v Commission, T‑166/02, EU:T:2003:73, para. 56

The ECB or, in some cases, the European Anti-Fraud Office 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. 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. There can be no question of a breach of the reasonable time rule in disciplinary proceedings in which the period which elapsed between every procedural step and the subsequent step was quite reasonable and in which, if there was any delay, that was due to the need to observe the rights of the defence of the person concerned and to answer the numerous comments and observations submitted by his lawyer. Moreover, although, admittedly, during the investigations prior to the initiation of the disciplinary proceedings and the disciplinary proceedings themselves the person concerned is placed in a situation of apprehension and uncertainty, in particular as regards his professional future, that aspect cannot affect the legality of the disciplinary decision given that that situation is inherent to any disciplinary proceedings and the initiation of those proceedings is warranted by the interest of the European Union, which requires the ECB, faced with allegations casting doubt on the integrity of its members of staff, to take the necessary measures, including suspending the person in question, to satisfy itself of the irreproachable nature of the latter’s professional conduct. (see paras 173, 175, 182, 184) See: Judgments in Teixeira Neves v Court of Justice, T‑259/97, EU:T:2000:208, para. 125, and Pessoa e Costa v Commission, EU:T:2003:73, para. 66 Judgments in Kerstens v Commission, F‑12/10, EU:F:2012:29, paras 124 and 125, and Goetz v Committee of the Regions, F‑89/11, EU:F:2013:83, para. 126

In disciplinary matters, if the disciplinary measure imposed on a member of staff of the ECB is finally more severe than that suggested by the Disciplinary Committee, 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. That requirement is satisfied where the Executive Board explains 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 disciplinary decision in terms of the obligation to state reasons. Moreover, 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 if the majority of the Disciplinary Committee agrees that, from its point of view, a breakdown in the relationship of trust may be established by the Executive Board only if the latter takes the view that the person concerned has been furthering his personal interest, the Executive Board may, under its broad discretion to define its requirements in terms of the integrity of ECB staff, take the view that the breakdown in the relationship of trust is complete, even outside the situation suggested by the Disciplinary Committee, that is to say even in the absence of proof that the person concerned has been furthering his personal interest. (see paras 190, 196, 197) See: Judgment in F. v Commission, 228/83, EU:C:1985:28, para. 35 Judgment in N v Commission, T‑198/02, EU:T:2004:101, para. 95 Judgment in EH v Commission, F‑42/14, EU:F:2014:250, para. 132

As regards the assessment of the gravity of the breaches found by the Disciplinary Committee of the ECB against a member of the Bank’s 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. Thus, 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. 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. As regards the proportionality of the disciplinary measure in relation to the seriousness of the facts upheld, the Union judicature 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. In that regard, the appointing authority has the power, distinct from that exercised by the Disciplinary Committee, to assess the liability of the staff member and subsequently to choose the disciplinary measure which it considers appropriate for the disciplinary offences found against him. 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, it being noted that, in that examination, the court cannot substitute its own value assessment for that made by the Bank in that regard or override the Bank’s choice of disciplinary measure. (see paras 205-207, 245) See: Judgments in Y v Court of Justice, EU:T:1996:94, para. 56; Tzikis v Commission, EU:T:2000:130, para. 48; E v Commission, EU:T:2001:175, paras 85 and 86; X v ECB, EU:T:2001:251, paras 221 and 222, and Afari v ECB, T‑11/03, EU:T:2004:77, para. 203 Judgment in BG v Ombudsman, T‑406/12 P, EU:T:2014:273, para. 64 Judgments in Nijs v Court of Auditors, F‑77/09, EU:F:2011:2, para. 132, and EH v Commission, EU:F:2014:250, paras 92 and 93

Article 4(a) of the Conditions of Employment for Staff of the European Central Bank and Articles 2, 2.2, 4.1, 4.2 and 5.1 of the Bank’s Code of Conduct 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. 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. In this connection, 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 he is in a high grade, conduct himself in a manner that is beyond suspicion, in order that the relationship of trust between the ECB and himself may at all times be maintained. 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, 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. 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. 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. Consequently, where a member of staff of the ECB who has a managerial function with enhanced responsibility for safeguarding the reputation and the financial interests of the institution ordered the purchase of goods on the Bank’s budget in connection with his pursuit of a personal interest, the Bank may consider that the staff member has irrevocably damaged the relationship of trust connecting him with the Bank. In such a situation, the Bank may, under its broad discretion in the definition of its requirements in terms of the integrity of its staff, take the view that, despite the wish of the staff member to continue the employment relationship, that relationship of trust cannot 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. In that regard, the ECB may, 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 a more lenient disciplinary measure would be 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 has definitively broken down. (see paras 209, 210, 231-234, 236, 237) See: Judgments in Williams v Court of Auditors, T‑146/94, EU:T:1996:34, para. 65; N v Commission, EU:T:1997:71, paras 127 and 129; Yasse v EIB, T‑141/97, EU:T:1999:177, paras 108 and 110; Afari v ECB, EU:T:2004:77, para. 193 Judgment in Gomes Moreira v ECDC, F‑80/11, EU:F:2013:159, paras 63 and 67

In disciplinary matters, any failure of his hierarchical superiors in their supervisory role and of the ECB’s other departments in the budgetary and financial monitoring of his division cannot be relied on by a member of the Bank’s managerial staff as an extenuating circumstance for the professional breaches alleged against him, since he remains responsible for his own acts. Likewise, 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. It could be legitimate for the Bank to consider the facts to be of such seriousness that, even if the track record of the staff member concerned had been exceptional, that would have been of no consequence. 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 his unauthorised activities 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. Moreover, the argument that the person concerned was not given targeted training on budget management and the procurement rules is ineffective in that that potential failing did not allow him to act in defiance of the express rules laid down by the ECB in its internal provisions. (see paras 222, 225, 226) See: Judgment in R. v Commission, EU:C:1985:324, para. 44 Judgments in Z v Parliament, T‑242/97, EU:T:1999:92, para. 115; Yasse v EIB, EU:T:1999:177, para. 114, and X v ECB, EU:T:2001:251, para. 233 Judgment in EH v Commission, EU:F:2014:250, para. 119