CELEX: C2002/289/13
Language: en
Date: 2002-11-23 00:00:00
Title: 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

C 289/8                EN                     Official Journal of the European Communities                                    23.11.2002
Appeal brought on 26 August 2002 by Carmine Salvatore                          It was not possible for the Governing Council of the
Tralli against the judgment delivered on 27 June 2002 by                       ECB to transfer the power to lay down conditions of
the Court of First Instance of the European Communities                        employment, as conferred on it by Article 36.1 of the
(Third Chamber) in Joined Cases T-373/00, T-27/01, T-56/                       ESCB Statute, to the Executive Board without infringing
01 and T-69/01 between Carmine Salvatore Tralli and the                        the principle of institutional equilibrium. The Court of
                     European Central Bank                                     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
                        (Case C-301/02 P)                                      contested this point in his initial written application, yet
                                                                               the Court of First Instance did not consider that com-
                         (2002/C 289/13)                                       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.
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/                 In the alternative:
01 and T-69/01 between Carmine Salvatore Tralli and the
European Central Bank was brought before the Court of Justice            —     The contested judgment disregards the fact that the task
of the European Communities on 26 August 2002 by Carmine                       of adopting a decision concerning the extension of a
Salvatore Tralli, represented by Norbert Pflüger, lawyer, of                   probationary period in abnormal circumstances cannot
Kaiserstrasse 44, D-60329 Frankfurt am Main, with an address                   be transferred to the Vice-President of the ECB; it is
for service in Luxembourg.                                                     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
The appellant claims that the Court should set aside the                       period.
judgment ( 1) contested in the appeal and in particular:
                                                                         —     The Court of First Instance ignored, in the contested
(1) annul the decision of the respondent (‘the ECB’) dismissing                judgment, the ECB’s unequivocal statement concerning
      the appellant from its employment;                                       the reason for the extension of the probationary period,
                                                                               thereby infringing essential principles relating to the
                                                                               burden of proof.
(2) annul the decision of the ECB concerning the extension
      of the probationary period;
                                                                         —     As regards the appellant’s complaint concerning the
                                                                               absence of any proper induction of the appellant into his
(3) order the ECB to pay to the appellant, in respect of the                   job, the Court of First Instance should have ascertained
      period extending beyond 31 December 2000, his basic                      the facts and was not entitled simply to adopt the
      salary amounting to EUR 32 304,00 per annum together                     arguments advanced by the ECB.
      with the allowances and other items of remuneration
      provided for in the ECB’s conditions of employment;
                                                                         The decision on costs is based on an error of law:
(4) order the ECB to pay the costs.
                                                                         —     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
Pleas in law and main arguments                                                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,
Infringement of substantive Community law:                                     as a consequence of the inadequate terms in which
                                                                               subparagraph (iii) in the second paragraph of Article 41
—     The Court of First Instance failed to have regard to the                 of the CoE is formulated.
      fact that the rules contained in the second subparagraph
      of Article 2.1.2 and Article 2.1.3 of the European Central         —     The bringing of the action in Case T-56/01 was prompted
      Bank Staff Rules (‘the SR’) are null and void: those rules               by a failure by the ECB to comply with its obligations.
      do not in any way constitute a transposition of the                      This corresponds to the duty of an employer to have
      Conditions of Employment for Staff of the European                       regard for the welfare and interests of his employees by
      Central Bank (‘the CoE’). Instead, the present case con-                 responding within one month to a complaint lodged by
      cerns autonomous conditions of employment.                               an employee.
      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             (1 ) OJ C 202 of 24 August 2002.
      governing entitlement to give notice of dismissal is
      lowered by comparison with Article 11(a)(i) of the CoE.