Case C-301/02 P: Appeal brought on 26 August 2002 by Carmine Salvatore Tralli against the judgment delivered on 27 June 2002 by the Court of First Instance of the European Communities (Third Chamber) in Joined Cases T-373/00, T-27/01, T-56/01 and T-69/01 between Carmine Salvatore Tralli and the European Central Bank
Date: 2002-11-23
Institutions: Court of Justice
Subjects: European Central Bank, action for annulment (EU), dismissal, probationary period, work contract

C 289/8

EN

Official Journal of the European Communities

23.11.2002

Appeal brought on 26 August 2002 by Carmine Salvatore
Tralli against the judgment delivered on 27 June 2002 by
the Court of First Instance of the European Communities
(Third Chamber) in Joined Cases T-373/00, T-27/01, T-56/
01 and T-69/01 between Carmine Salvatore Tralli and the
European Central Bank

(Case C-301/02 P)

(2002/C 289/13)

An appeal against the judgment delivered on 27 June 2002 by
the Court of First Instance of the European Communities
(Third Chamber) in Joined Cases T-373/00, T-27/01, T-56/
01 and T-69/01 between Carmine Salvatore Tralli and the
European Central Bank was brought before the Court of Justice
of the European Communities on 26 August 2002 by Carmine
lawyer, of
Salvatore Tralli, represented by Norbert Pflüger,
Kaiserstrasse 44, D-60329 Frankfurt am Main, with an address
for service in Luxembourg.

The appellant claims that the Court should set aside the
judgment (1) contested in the appeal and in particular:

(1)

(2)

annul the decision of the respondent (‘the ECB’) dismissing
the appellant from its employment;

annul the decision of the ECB concerning the extension
of the probationary period;

(3) order the ECB to pay to the appellant, in respect of the
period extending beyond 31 December 2000, his basic
salary amounting to EUR 32 304,00 per annum together
with the allowances and other items of remuneration
provided for in the ECB’s conditions of employment;

(4) order the ECB to pay the costs.

Pleas in law and main arguments

Infringement of substantive Community law:

— The Court of First Instance failed to have regard to the
fact that the rules contained in the second subparagraph
of Article 2.1.2 and Article 2.1.3 of the European Central
Bank Staff Rules (‘the SR’) are null and void: those rules
do not in any way constitute a transposition of the
Conditions of Employment for Staff of the European
Central Bank (‘the CoE’). Instead, the present case con-
cerns
employment.
conditions
Article 2.1.3 of the SR introduces, in contradiction to
Article 11(a)(i) of the CoE, a different criterion for
dismissal during the probationary period; the standard
governing entitlement
is
lowered by comparison with Article 11(a)(i) of the CoE.

to give notice of dismissal

autonomous

of

It was not possible for the Governing Council of the
ECB to transfer the power to lay down conditions of
employment, as conferred on it by Article 36.1 of the
ESCB Statute, to the Executive Board without infringing
the principle of institutional equilibrium. The Court of
First Instance failed to have regard to the fact that the
Governing Council of the ECB did not in any way transfer
that power to the Executive Board; the appellant expressly
contested this point in his initial written application, yet
the Court of First Instance did not consider that com-
plaint; instead, it presumed the existence of an implicit
mandate falling within the scope of Article 21.3 of the
ECB’s Rules of Procedure, notwithstanding that any such
transfer of powers would have had to be effected
expressly.

In the alternative:

— The contested judgment disregards the fact that the task
of adopting a decision concerning the extension of a
probationary period in abnormal circumstances cannot
be transferred to the Vice-President of the ECB;
it is
clear from the wording of the second subparagraph of
Article 2.1.2 of the SR that it was for the Executive Board
alone to decide on an extension of the probationary
period.

— The Court of First Instance ignored,

in the contested
judgment, the ECB’s unequivocal statement concerning
the reason for the extension of the probationary period,
thereby infringing essential principles relating to the
burden of proof.

— As regards the appellant’s complaint concerning the
absence of any proper induction of the appellant into his
job, the Court of First Instance should have ascertained
the facts and was not entitled simply to adopt the
arguments advanced by the ECB.

The decision on costs is based on an error of law:

— In view of the fact that the law governing staff members
of the ECB had not previously been the subject of any
detailed analysis in judicial decisions, the appellant was
forced, as a precautionary measure, to assume that the
pre-litigation procedure on which Cases T-27/01 and
T-69/01 were based was admissible. In actual fact, the
ECB itself caused the judicial proceedings to be instituted,
as a consequence of the inadequate terms in which
subparagraph (iii) in the second paragraph of Article 41
of the CoE is formulated.

— The bringing of the action in Case T-56/01 was prompted
by a failure by the ECB to comply with its obligations.
This corresponds to the duty of an employer to have
regard for the welfare and interests of his employees by
responding within one month to a complaint lodged by
an employee.

(1) OJ C 202 of 24 August 2002.