CELEX: 62002CC0301
Language: en
Date: 2005-02-17
Title: Opinion of Mr Advocate General Léger delivered on 17 February 2005. # Carmine Salvatore Tralli v European Central Bank. # Appeal - Staff of the European Central Bank - Recruitment - Extension of the probationary period - Dismissal during the probationary period. # Case C-301/02 P.

OPINION OF ADVOCATE GENERAL
      LÉGER
      delivered on 17 February 2005 (1)
      
      Case C-301/02 P
      Carmine Salvatore Tralli
      v
      European Central Bank
      (Appeal – European Central Bank – Staff Rules – Adoption of implementing provisions for conditions of employment – Delegation to the Executive Board – Decision extending the probationary period of a newly-recruited member of staff – Delegation given to the Vice-President of the Bank – Lawfulness)1.     This case essentially raises two questions, which relate to the delegation of powers within the European Central Bank (‘the
         ECB’). The first question asks whether the Governing Council (2) could lawfully delegate to the Executive Board (3) the power to adopt implementing rules in relation to conditions of employment. The second asks whether the Executive Board
         was entitled to authorise the Vice‑President of the ECB to undertake certain measures of management and, in particular, to
         take decisions extending the probationary period of newly‑recruited members of staff. 
      
      2.     Those questions arise in an appeal brought by a former member of staff of the ECB, Mr Tralli, against the judgment of the
         Court of First Instance of the European Communities in the case Tralli  v ECB. (4)
      
      I –  Legal framework 
      3.     Article 12.3 of the Protocol on the Statute of the European System of Central Banks and of the European Central Bank annexed
         to the EC Treaty (‘the ESCB Statute’) states that ‘the Governing Council shall adopt Rules of Procedure which determine the
         internal organisation of the ECB and its decision-making bodies’. 
      
      4.     Article 36.1 of that document adds: ‘the Governing Council, on a proposal from the Executive Board, shall lay down the conditions
         of employment of the staff of the ECB’. 
      
      5.     On the basis of Article 36.1 of the ESCB Statute, the Governing Council adopted the Conditions of Employment for Staff of
         the European Central Bank’. (5) In their version applicable to the facts in dispute, they provide: 
      
      ‘9.      (a)   Employment relations between the ECB and its members of staff shall be governed by employment contracts issued in conjunction
         with these Conditions of Employment. The Staff Rules adopted by the Executive Board shall further specify the application
         of these Conditions of Employment. 
      
      ... 
      10.      (a)   Employment contracts between the ECB and its members of staff shall take the form of letters of appointment which shall be
         countersigned by members of staff … .
      
               (b)   Appointments may be subject to a probationary period in accordance with the provisions laid down in the Staff Rules. The probationary
         period shall in no circumstances exceed twelve months. 
      
      11.      (a)   Contracts of members of staff may be terminated by the ECB on a reasoned decision of the Executive Board … on the following
         grounds: 
      
               (i)   in the case of continued unsatisfactory performance … ;  
      ... 
      41.      Members of staff may ask for an administrative review of complaints and grievances … . Members of staff who remain dissatisfied
         following the administrative review procedure may use the grievance procedure laid down in the Staff Rules. 
      
      Such procedures may not be used to challenge: 
      … 
               (iii) any decision not to confirm the appointment of a member of staff serving a probationary period.’ 
      6.     On the basis of Article 12.3 of the ESCB Statute, the Governing Council adopted the Rules of Procedure of the ECB. (6) Article 21.3 of those Rules provides: 
      
      ‘The Conditions of Employment shall be implemented by Staff Rules, which shall be adopted and amended by the Executive Board.’
         
      
      7.     On the basis of that provision and of Article 9(a) of the Conditions of Employment, the Executive Board of the ECB adopted
         the ‘European Central Bank Staff Rules’ (‘the Staff Rules’). They provide as follows: 
      
      ‘2.1      Probationary period 
      The provisions of Article 10(b) of the Conditions of Employment are applied as follows: 
      2.1.1 Appointments shall be subject to a probationary period of three months … . In exceptional circumstances the Executive Board
         may determine a probationary period longer than three months as set out in 2.1.2(a) below. 
      
      ... 
      2.1.2 Where the probationer is prevented by illness, accident, maternity or, in exceptional circumstances, special leave from performing
         his/her duties for a period of more than one month, the Executive Board may extend the probationary period accordingly. 
      
      In addition, the Executive Board may, in exceptional circumstances, 
               (a)   extend the probationary period up to a maximum of twelve months; or 
               (b)   extend the probationary period up to a maximum of twelve months and assign the probationer to another function. 
      2.1.3 During the probationary period the Executive Board may terminate the contract, giving one month’s notice, should the probationer’s
         performance or suitability prove inadequate.’ 
      
      II –  Facts 
      8.     On 20 June 2000, Mr Tralli was appointed by the ECB as a security guard. His letter of appointment stated that his contract
         of employment was subject to a probationary period of three months. 
      
      9.     On 21 August 2000, the appellant’s superior notified him that his performance failed to meet the standard required for the
         post in question. The inadequacy of his performance was also the subject of an interview held on 1 September 2000. 
      
      10.   On 8 September 2000, the appellant received a copy of an internal memo in which the coordinator of security at the ECB asked
         the appellant’s superior to extend his probationary period. The memo stated that such an additional probationary period was
         necessary by reason of the appellant’s failure to perform his services to the necessary standard and to allow him to undertake
         additional training. 
      
      11.   By letter of 18 September 2000, the ECB notified the appellant of the decision to extend his probationary period until 31
         December 2000. (7) He was informed that any decision to confirm his appointment depended on the standard of his performance during the extended
         probationary period. 
      
      12.   By letter of 29 November 2000, the appellant was informed of the Executive Board’s decision to terminate his contract with
         effect from 31 December 2000. (8) The ground for that decision was that, even during the extended probationary period, the appellant’s performance had not
         improved. 
      
      III –  Procedure before the Court of First Instance and the contested judgment 
      13.   By application lodged at the Registry of the Court of First Instance on 12 December 2000, Mr Tralli brought an action seeking,
         inter alia, the annulment of the decision to dismiss (Case T-373/00). 
      
      14.   Mr Tralli also brought three other actions seeking, inter alia: 
      –       annulment of the decision of the President of the ECB rejecting the appellant’s complaint against the decision to extend the
         probationary period (Case T-27/01); 
      
      –       a declaration that the President of the ECB had unlawfully refrained from defining his position in relation to the appellant’s
         request for the decision to dismiss to be reviewed (Case T‑56/01), and 
      
      –       annulment of the decision of the President of the ECB rejecting the appellant’s complaint against the decision to dismiss
         (Case T‑69/01). 
      
      15.   Those applications were considered together by the Court of First Instance. It decided to dismiss the action in Case T-373/00
         and held that there was no longer any need to adjudicate in Cases T-27/01, T-56/01 and T-69/01. 
      
      IV –  The appeal 
      16.   By application lodged at the Registry of the Court of Justice on 26 August 2002, Mr Tralli brought the present appeal. 
      17.   It seeks the annulment of the contested judgment and of the decisions of the ECB extending the probationary period and to
         dismiss him. Mr Tralli also asks the Court to order the ECB to pay him, for the period after 31 December 2000, his basic salary,
         amounting to EUR 32 304 a year, together with allowances and other items of remuneration specified in the Conditions of Employment.
         Lastly, Mr Tralli asks that the ECB be ordered to pay the costs. 
      
      18.   For its part, the ECB contends that the appeal should be dismissed and that the appellant should be ordered to pay the costs.
         
      
      19.   In support of the forms of order sought by him, Mr Tralli relies on three grounds of appeal, which I shall consider in turn:
         
      
      –       contravention of the rules relating to delegation of powers, 
      –       contravention of Articles 2.1.2 and 2.1.3 of the Staff Rules, and 
      –       contravention of the rules relating to liability for costs. 
      A –    The first ground of appeal, alleging contravention of the rules relating to delegation of powers 
      20.   By his first ground of appeal, the appellant essentially submits that the Court of First Instance contravened the rules relating
         to delegation of powers. 
      
      21.   At first instance, the appellant had raised a plea of illegality against the Staff Rules. The Court of First Instance ruled
         as follows in relation to that plea: 
      
      ‘43      According to the applicant, the Staff Rules have no basis in law. They comprise rules governing the members of staff of the
         ECB and should accordingly have been adopted, on the basis of Article 36.1 of the ESCB Statute, by the Governing Council on
         a proposal from the Executive Board, and not by the Executive Board, which had no powers in that field. 
      
      44      The short answer to that point is that, in the circumstances which gave rise to the judgment in X  v ECB (Case T-333/99 [2001] ECR II-3021; [2001] ECR‑SC I‑A‑199 and II‑921), a plea of illegality having the same basis as that relied
         on by the applicant in the present case was raised before the Court of First Instance. In that judgment, the Court of First
         Instance essentially held, in paragraphs 96 to 109, that the Staff Rules are not vitiated by the illegality complained of
         by the applicant, inasmuch, in particular, as, under Article 21.3 of the Rules of Procedure of the ECB, the Governing Council
         has delegated to the Executive Board the power to determine the rules for the implementation of the Conditions of Employment,
         that is to say, the Staff Rules.’ 
      
      22.   Mr Tralli maintains that, by rejecting that plea of illegality, the Court of First Instance erred in law. He puts forward
         three sets of arguments in support of his position. 
      
      23.   First, Mr Tralli submits that under Article 36.1 of the ESCB Statute the Executive Board of the ECB has no power to adopt
         rules relating to members of staff. That power belongs to the Governing Council, with the Executive Board having the right
         only to make proposals in that regard. Furthermore, the Governing Council has no authority to delegate its power to the Executive
         Board, inasmuch as Article 12.3 of the ESCB Statute and the concept itself of ‘Rules of Procedure’ do not permit such delegation.
         
      
      24.   Secondly, Mr Tralli contends that the Court of First Instance was wrong to hold that the Governing Council had lawfully delegated
         its power to adopt rules relating to members of staff to the Executive Board. It is clear from the case-law that Community
         law requires that powers be delegated expressly. In the present case, the Court of First Instance had simply ‘assumed that
         there was an implied power of delegation under Article 21.3 of the Rules of Procedure’. (9)
      
      25.   Lastly, Mr Tralli states that in adopting Articles 2.1.2 and 2.1.3 of the Staff Rules the Executive Board failed to have regard
         to Article 21.3 of the Rules of Procedure, inasmuch as it did not simply adopt measures implementing the Conditions of Employment,
         but adopted what were truly autonomous rules. Those provisions permit a unilateral extension of the probationary period, while
         Article 10(b) of the Conditions of Employment provides only for such a period to be the subject of agreement under contract.
         Furthermore, they introduce a criterion for dismissal during that period, linked to the inappropriate conduct or performance
         of the employee, which differs from that laid down under Article 11(a)(i) of the Conditions of Employment. 
      
      26.   In my opinion, the starting point for any analysis is to be found in Meroni  v High Authority. (10)
      
      27.   In that case, the appellant complained that the High Authority had delegated certain of its powers to ‘Brussels agencies’,
         that is to say, private agencies, established outside the provisions of the ECSC Treaty. The appellant maintained that Article
         8 of that Treaty, which required the High Authority to ensure that the objectives set in the Treaty were attained, did not
         allow for delegation. 
      
      28.   The Court rejected that argument, reasoning as follows: (11)
      
      ‘… the possibility of entrusting bodies established under private law, having a distinct legal personality and possessing
         powers of their own, the task of putting into effect certain “financial arrangements common to several undertakings” as mentioned
         in subparagraph (a) of Article 53 [of the ECSC Treaty] cannot be excluded. 
      
      The financial arrangements made by the High Authority itself in application of subparagraph (b) of the same article must serve
         the same purposes as those authorised in application of subparagraph (a). 
      
      Therefore, it must be possible for those arrangements to be similar in form and in particular to use the aid of bodies having
         a distinct legal personality. 
      
      Hence the power of the High Authority to authorise or itself make the financial arrangements mentioned in Article 53 of the
         [ECSC] Treaty gives it the right to entrust certain powers to such bodies subject to conditions to be determined by it and
         subject to its supervision’. 
      
      29.   As one writer has observed, (12) the Court therefore took the view that the provisions of the ECSC Treaty granting legislative powers to the High Authority
         formed a sufficient legal basis to allow it to delegate certain powers to private bodies having a distinct legal personality.
         The view may therefore be taken that the delegation of powers is lawful under Community law where, as in the present case,
         there is no provision which expressly prohibits it. (13)
      
      30.   Accordingly, I am of the opinion that, as a matter of principle, the Governing Council was entitled to delegate certain of
         its powers to the Executive Board of the ECB. The appellant’s first argument, relating to the absence of a power to delegate,
         should therefore be rejected. 
      
      31.   As regards the rules applying to the delegation of powers, Meroni  shows that delegation must satisfy several conditions if it is to be lawful. Those conditions, which constitute the normal
         rules applying to the delegation of powers under Community law, (14) are as follows: 
      
      –       the delegating authority may not confer on the entity receiving the delegation powers different from those which the delegating
         authority itself received; (15)
      
      –       the exercise of the powers conferred on an entity receiving the delegation must be subject to the same conditions as those
         to which it would be subject if the delegating authority was exercising them directly, particularly as regards the requirements
         to state reasons and to publish; (16)
      
      –       a delegation of powers cannot be presumed: even when empowered to delegate its powers the delegating authority must take an
         express decision transferring them; (17)
      
      –       delegation may relate only to executive powers, which must be clearly defined: (18) the Court has ruled that the delegation of a discretionary power, implying a wide margin of discretion, replaces the choices
         of the delegator by those of the delegate and thus brings about an actual transfer of responsibility. (19) In certain fields, such as the common agricultural policy, the Court has held, however, that the concept of ‘implementation’
         must be given a wide interpretation, having regard to the scheme of the Treaty and practical considerations. (20)
      
      32.   In the present case, Mr Tralli considers that the last two requirements set out above are not satisfied. He maintains, in
         his second and third arguments, that the disputed delegation was not made expressly and that Articles 2.1.2 and 2.1.3 of the
         Staff Rules go beyond the mere ‘implementation’ of the Conditions of Employment. 
      
      33.   As regards the second argument, it suffices to read the Rules of Procedure to determine that it is manifestly unfounded. At
         Article 21.3 of the Rules of Procedure, the Governing Council, which has the power to adopt the Staff Rules, expressly stated
         that ‘the Conditions of Employment shall be implemented by Staff Rules, which shall be adopted and amended by the Executive
         Board’. 
      
      34.   The Governing Council thus expressly delegated the power to adopt the conditions governing the implementation of the Conditions
         of Employment. Contrary to what the appellant contends, the Court of First Instance in the contested judgment did not simply
         ‘assume the presence of an implied delegation under Article 21.3 of the Rules of Procedure’. (21)
      
      35.   As regards the third argument, I am of the view that Articles 2.1.2 and 2.1.3 of the Staff Rules do not affect the scope of
         the relevant provisions of the Conditions of Employment. 
      
      36.   As is mentioned above, Article 10(b) of the Conditions of Employment states that ‘appointments may be subject to a probationary
         period’ which ‘shall in no circumstances exceed twelve months’. The Executive Board provided at Article 2.1.2 of the Staff
         Rules that it ‘may in exceptional circumstances extend the probationary period up to a maximum of twelve months’. Article
         2.1.2 of the Staff Rules thus simply lays down implementing provisions relating to the probationary period while at the same
         time complying with the maximum period laid down by the Governing Council. 
      
      37.   In that regard, the fact that the Executive Board may unilaterally extend the probationary period does not make Article 2.1.2
         of the Staff Rules unlawful. In its judgment in Pflugradt  v ECB, (22) the Court expressly held that the contractual nature of the employment relationship between the ECB and its staff does not
         mean that its bodies might not adopt measures unilaterally in the light of the public interest responsibilities with which
         it is entrusted. As the power to adopt such measures is thus contained in the Conditions of Employment, it cannot be the case,
         as the appellant maintains, that, by providing for a unilateral extension of the probationary period in exceptional circumstances,
         Article 2.1.2 of the Staff Rules impinged upon the nature or the scope of the Conditions of Employment. (23)
      
      38.   As regards Article 2.1.3 of the Staff Rules, as stated above it authorises the Executive Board to terminate the contract during
         the probationary period in cases where the probationer’s ‘performance or suitability prove inadequate’. It is true that ‘suitability’
         is not mentioned, as such, in Article 11(a)(i) of the Conditions of Employment, which provides that ‘contracts of members
         of staff may be terminated by the ECB … in the case of continued unsatisfactory performance’. 
      
      39.   However, as with unsatisfactory performance, lack of suitability relates to the ability of the probationer to carry out his
         duties in a satisfactory manner. Furthermore, the concept of suitability is implicit in the concept of a probationary period,
         since the latter is always undertaken in order to determine the probationer’s ability to perform the duties for which he was
         recruited. It cannot, therefore, be contended that, by providing for the possibility of terminating the contract in cases
         of lack of suitability, Article 2.1.3 of the Staff Rules went beyond the mere implementation of the Conditions of Employment.
         
      
      40.   It follows from the above that, in the provisions mentioned, the Executive Board clearly remained within the limits of the
         implementing powers which the Governing Council entrusted to it in Article 21.3 of the Rules of Procedure. 
      
      41.   The appellant’s first ground of appeal should therefore be rejected. 
      B –    The second ground of appeal, alleging contravention of Articles 2.1.2 and 2.1.3 of the Staff Rules 
      42.   The second ground of appeal is relied on by the appellant in the alternative, in the event that the Court accepts that Articles
         2.1.2 and 2.1.3 of the Staff Rules are lawful. It is directed against paragraphs 46 to 83 of the contested judgment. 
      
      43.   In those paragraphs, the Court of First Instance held that the decisions extending the probationary period and to dismiss
         did not contravene the Conditions of Employment and the Staff Rules, for the following reasons: 
      
      ‘48      First, the applicant argues that the decision to extend the probationary period carries the signatures of a director and a
         head of unit of the Directorate of Personnel, whereas, under Article 2.1.2 of the Staff Rules, decisions concerning the extension
         of the probationary period must be taken by the Executive Board of the ECB. 
      
      49      The Court observes that, on request by the Court, the ECB produced, first, an extract of the minute of the meeting of the
         Executive Board of 16 March 1999, which shows that, at that meeting, that body delegated the power to take decisions extending
         the probationary period to the Vice-President of the ECB and, secondly, the proposal to extend the applicant’s probationary
         period of 13 September 2000 on which the Vice-President of the ECB indicated, in manuscript, his agreement on 15 September
         2000. Therefore, the decision to extend the probationary period was adopted in accordance with the applicable procedural requirements
         … . 
      
      ... 
      54      Thirdly, the applicant claims that the defendant could not base its decision to extend the probationary period on the second
         subparagraph of Article 2.1.2 of the Staff Rules. He states that, under that provision, the probationary period may be extended
         only in “exceptional circumstances”. According to the applicant, such “exceptional circumstances” could exist only where a
         long-term obstacle to performing his duties directly undermines the achievement of the objective of the probationary period.
         In his opinion, such circumstances did not exist in this case. Inadequacy of performance, alleged on a general basis, cannot
         of itself constitute such an exceptional circumstance. 
      
      55      The defendant’s reply in that regard is essentially that the applicant’s probationary period, as initially agreed upon, largely
         fell during the summer holiday period and that, because of the reduced level of activities at the ECB during that period,
         the applicant’s ability to occupy that post could not be established. It was necessary to do so inasmuch as the applicant
         had shown certain failings in his conduct during the probationary period initially agreed upon. 
      
      56      The Court considers that the mere fact that part of the probationary period in the present case fell during the holiday months
         cannot be held to be exceptional within the meaning of Article 2.1.2 of the Staff Rules. On the contrary, that point was wholly
         foreseeable by the administration at the time of recruitment. However, the ECB is entitled to take the view that that condition
         is satisfied where, for objectively justified reasons, the administration has doubts as to the ability of the probationer
         to occupy the post for which he was recruited but, partly because of a lower level of activity during the summer holiday months,
         is not yet in a position to reach a final opinion on the question whether the appointment of the probationer should be confirmed
         or his contract should be terminated at the end of the probationary period. 
      
      57      In the present case, it is clear from the papers before the Court and in particular from the note of 8 September 2000 that
         the administration was not in a position, during the probationary period initially agreed upon, to be certain of the applicant’s
         ability – either to the extent of confirming the applicant in his post or of being so clearly dissatisfied as to lead it to
         terminate the contract. Nevertheless, the papers show that the administration had doubts during the probationary period initially
         agreed upon as to the applicant’s ability to perform his duties and in particular to master the ECB’s security system, without
         at the same time being in a position to conclude definitively that his contract should be terminated during that initial probationary
         period. The presence of those doubts on the part of his superiors was, moreover, confirmed by the applicant himself, in so
         far as that note shows that he expressed a desire to improve his performance. In those circumstances, the defendant was entitled
         to take the view that it was faced with exceptional circumstances, within the meaning of the second subparagraph of Article
         2.1.2 of the Staff Rules, which allowed it to extend the applicant’s probationary period. 
      
      ... 
      61      In the light of the above, it should be held that the applicant has not succeeded in establishing that the decision to extend
         the probationary period was unlawful ... . 
      
      ... 
      68      [As regards the decision to dismiss], the applicant essentially argues that he was given no opportunity during the probationary
         period to adjust to the requirements of the regular security service, that he had not been allowed to learn how to carry out
         his duties without being put under pressure but that he had immediately been integrated in the normal team arrangements and
         that he had not been given any training in that regard. In particular, with respect to the criticisms made of him relating
         to failings in the use of the ECB’s information technology system, he states that he received only inadequate training in
         the matter during his probationary period. 
      
      69      The Court of First Instance considers that a decision to dismiss at the end of the probationary period must be annulled if
         the probationer has not been allowed to complete his probationary period under normal conditions (see, in relation to the
         Staff Regulations, Case 3/84 Patrinos v ECOSOC [1985] ECR 1421, paragraphs 20 to 24, and Case T-568/93 Correia  v Commission [1994] ECR-SC I-A-271 and II-857, paragraph 34). 
      
      70      It is accordingly necessary in the present case to consider whether the applicant was allowed to complete his probationary
         period under normal conditions. 
      
      71      In that regard, it is clear from the papers before the Court and, in particular, from the note sent by the coordinator of
         security at the ECB on 8 September 2000 to the applicant’s superior, on which the latter confirmed in manuscript that he had
         been made aware of its contents, that, during the first four weeks of his duties at the ECB, the applicant benefited from
         a training programme on the principal tasks that would be allocated to him. The objectives and content of that course had
         been laid down by the supervisor of the ECB security guards, who had set up a training plan in that regard dated 29 June 2000,
         which was lodged with the Court at its request. During that period, as the applicant confirmed in person at the hearing, he
         attended a certain number of presentations on the operation of different items of work equipment involved in the ECB’s security
         system and was accompanied in his daily work by two experienced colleagues who, because of their specialised experience, had
         been allocated to him as “godfathers”. At the hearing, the applicant also confirmed that those colleagues had in fact given
         him a certain amount of basic instruction in his future duties. As regards the applicant’s allegation that those instructions
         were insufficiently precise, suffice it to say that he provided no actual evidence in that respect which would allow the Court
         to reach a conclusion as to why such a system of tutelage did not fulfil its purpose. 
      
      72      Furthermore, it is clear from a note drawn up for the purposes of these proceedings by the assistant supervisor of the ECB
         guards on 21 December 2001, the contents of which were confirmed by the applicant himself at the hearing, that, from 23 to
         25 August 2000, he received additional training on various security systems, including certain information technology systems.
         Lastly, it is clear from that note, and was confirmed by the applicant in person at the hearing, that, after the extension
         of the probationary period, he attended two days of training in information technology, one day of which took place during
         the applicant’s annual leave, the objective of which was to look again at the operation of those different systems. The applicant
         once again raises the criticism that that training was inadequate, but at the same time provides no actual evidence which
         would allow the Court to reach a conclusion as to why that training did not allow him to learn the requirements of his work
         and to receive training appropriate to his needs. 
      
      73      It follows from the above that the ECB had established for newly-recruited members of staff, including the applicant, a training
         programme which should have allowed the applicant to know, during the probationary period of six months, the nature of the
         duties he would have to perform and the contribution he was expected to provide. In those circumstances, there is nothing
         to support the conclusion that the applicant was not given an opportunity to complete his probationary period under normal
         conditions. 
      
      ... 
      83      It follows that the plea alleging contravention of the Conditions of Employment and the Staff Rules together with the principle
         of proportionality must be rejected in its entirety.’ 
      
      44.   The second ground of appeal seeks to challenge that assessment. It comprises five parts, which I shall consider in turn. 
      45.   In the first part, Mr Tralli submits that the decision to extend the probationary period was adopted in contravention of Article
         2.1.2 of the Staff Rules. According to him, contrary to what the Court of First Instance decided at paragraph 49 of the contested
         judgment, the power to extend his probationary period was vested in the Executive Board alone and could not be delegated to
         the Vice-President of the ECB. 
      
      46.   It should be noted that, at paragraph 49 of the contested judgment, the Court of First Instance held that, on the basis of
         the papers before it, the Executive Body had delegated to the Vice-President of the ECB the power to adopt decisions extending
         the probationary period of newly-recruited members of staff at its meeting of 16 March 1999. The applicant’s argument thus
         requires that the validity of that delegation be examined. 
      
      47.   In that regard, I am of the view that the principles identified in the case-law relating to delegations granted by the Commission
         of the European Communities to its members are relevant. 
      
      48.   In my opinion, delegation of this kind represents a particular type of delegation of powers, which is justified by the ‘powers
         of internal organisation’ which the Community institutions and bodies established by the Treaty are recognised to possess, (24) and which, unlike other types of delegation, is generally restricted to the power to adopt decisions on an individual basis.
         The conditions laid down by the judgment in Meroni thus appear to be entirely applicable to such arrangements for delegation. 
      
      49.   It is the settled case-law of the Court (25) that the Commission may, without infringing the principle of collegiality which governs its operations, (26) authorise its members to take certain decisions in its name. According to the Court, that system of delegation does not have
         the effect of divesting the Commission of its power to take decisions, since the decisions taken by the member are taken in
         the name of the Commission, which assumes full responsibility for them. (27) Furthermore, the Court has held that such a system is ‘necessary, having regard to the considerable increase in the number
         of decisions which the Commission is required to adopt, to enable it to perform its duties’. (28) According to the Court, the ‘need to ensure that the decision-making body is able to function corresponds to a principle
         inherent in all institutional systems and which is set out … in Article 16 of the Merger Treaty, according to which “the Commission
         shall adopt its rules of procedure so as to ensure that both it and its departments operate”’. (29)
      
      50.   According to case-law, such a system of delegation may, however, relate only to measures of management or administration,
         and excludes all decisions of principle. (30) Delegation may thus relate to a decision to proceed to carry out investigations under Article 14(3) of Regulation No 17, (31) a decision to discontinue aid, (32) or a decision requiring default interest to be paid following a judgment imposing a fine. (33) By contrast, delegation cannot relate to a decision finding an infringement of competition law, (34) nor a decision to issue a reasoned opinion or to bring an action for a declaration of failure to fulfil obligations under
         Article 226 EC. (35)
      
      51.   In my opinion, that case-law, which relates to the system of delegation instituted within the Commission, is entirely capable
         of being applied to the present case. 
      
      52.   Since delegation is restricted to measures of management and administration, it does not have the result of divesting the
         Executive Body of its power to take decisions: the decisions to extend the probationary period taken by the Vice‑President
         of the ECB were taken in the name of the Executive Body, which assumes full responsibility for them. Furthermore, the need
         to ensure that the decision-making body is able to perform its duties is laid down, as it is for the Commission, in a provision
         of primary law, in Article 12.3 of the ESCB Statute, which provides that ‘the Governing Council shall adopt Rules of Procedure
         which determine the internal organisation of the ECB and its decision-making bodies’. 
      
      53.   It is not contested in the present case that the disputed delegation relates only to measures of management and administration.
         The Vice-President of the ECB is simply required to decide whether or not it is necessary to extend the probationary period
         of a newly-recruited member of staff. The Vice-President of the ECB thus possesses no powers in relation to ‘decisions of
         principle’ within the meaning of the case-law cited above. 
      
      54.   In those circumstances, I am of the view that the Executive Body was entitled to authorise the Vice-President of the ECB to
         take decisions to extend the probationary period of newly-recruited members of staff and that the first part of the ground
         of appeal is accordingly unfounded. 
      
      55.   In the second part, Mr Tralli argues that Article 2.1.2 of the Staff Rules is contrary to ‘higher rules of Community law’
         and in particular to the ‘principle that the European Communities are a Community subject to the rule of law’. (36) He maintains that, by referring to vague criteria, such as that of ‘exceptional circumstances’, which fail to specify the
         manner in which the Conditions of Employment are to be implemented, the disputed provision may lead to arbitrary measures.
         
      
      56.   Regardless of the fact that that argument concerns the lawfulness of Article 2.1.2 of the Staff Rules and should accordingly
         have been raised under the first ground of appeal, I consider that it is manifestly unfounded. 
      
      57.   It is established that concepts such as those of ‘exceptional circumstances’ which are used in Article 2.1.2 of the Staff
         Rules represent what are known as ‘legal standards’. These are flexible rules which have as their basis an intentionally indeterminate
         yardstick and which thus show the desire of the legislature to leave to the authorities concerned – whether they be administrative
         or judicial – the task of defining their scope on a case-by-case basis, so that their application may be best adapted to the
         facts before those authorities. Legal standards are known to most, if not all, legal systems and, in particular, to the Community
         legal order. (37) In such cases, the risk of arbitrary decisions is, as in all other cases, avoided by the fact that the decision in question
         is subject to judicial review. 
      
      58.   Accordingly, I am of the view that the second part of the ground of appeal is manifestly unfounded. 
      59.   In the third part, the appellant contests the determination by the Court of First Instance that the existence of doubts as
         to the probationer’s abilities may represent an ‘exceptional circumstance’ justifying an extension of his probationary period
         under Article 2.1.2 of the Staff Rules. He maintains that the whole point of the probationary period is to determine whether
         such doubts exist, and the Court of First Instance has accordingly reversed the rule and the exception. 
      
      60.   In that regard, it should be pointed out, first of all, that case-law states that the ECB enjoys wide discretion in the organisation
         of its services and in the assignment of its staff to perform its public service responsibilities. (38)
      
      61.   It should next be noted that, in the Community institutions and bodies, the probationary period, or stage, is generally sufficient to allow the decision-making authority to achieve certainty as to the probationer’s ability to occupy
         the post for which he was recruited. That certainty may take the form either of a confirmation of the probationer in his post
         or of a decision to terminate his contract or appointment. In reality, cases where, at the end of the trial or probationary
         period, the decision-making authority still has doubts of such a nature that it must – or should – extend the probationary
         period of the party concerned are relatively uncommon. 
      
      62.   Accordingly, it has not been established that the Court of First Instance erred in law in considering that the existence of
         doubts as to a probationer’s ability could represent an ‘exceptional circumstance’ justifying an extension of his probationary
         period under Article 2.1.2 of the Staff Rules. 
      
      63.   In the fourth part, the appellant contests the finding by the Court of First Instance that his probationary period was extended
         by reason of doubts as to his ability to perform his duties. He points out that the ECB stated in its rejoinder in Case T-373/00
         that the appellant’s probationary period was extended because it occurred during a holiday period. 
      
      64.   Irrespective of questions as to the admissibility of this complaint, it is sufficient to observe that, in its rejoinder, the
         ECB put forward two sets of arguments, as follows: 
      
      ‘12.      First, the [ECB] relies on the fact that the appellant took up his duties on 1 July 2000 [and that] a large part of his probationary
         period [accordingly] took place during a [holiday] period. 
      
      13.      Secondly, the [ECB] has taken into account the fact that, before taking up his duties at the ECB, the appellant had been employed
         for 14 years by a private security company. It therefore concluded from that that the appellant’s failure to perform  was principally to be explained by possible difficulties due to the new work at the ECB and to the need to adjust to new working
         conditions, and that an extension of the probationary period would give the appellant an additional opportunity to demonstrate his qualities and his ability to adjust’. (39)
      
      65.   In those circumstances, the appellant’s argument relating to the appraisal of the terms of the ECB’s rejoinder in Case T-373/00
         is, on any analysis, manifestly unfounded. 
      
      66.   Lastly, in the final part, the appellant puts forward various arguments seeking to show that, contrary to what the Court of
         First Instance held at paragraphs 70 to 73 of the contested judgment, he was not allowed to complete his probationary period
         under normal conditions. 
      
      67.   In that regard, it should be pointed out that it is settled case-law (40) that the Court of Justice has no jurisdiction to establish the facts or, in principle, to examine the evidence which the
         Court of First Instance accepted in support of those facts. Provided that the evidence has been properly obtained and the
         general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been
         observed, it is for the Court of First Instance alone to assess the value which should be attached to the evidence produced
         to it. That appraisal does not therefore constitute, save where the clear sense of the evidence has been distorted, a point
         of law which is subject to review by the Court of Justice. 
      
      68.   In the present case, the Court of First Instance held, on the basis of the material presented in the papers before that Court,
         that ‘there is nothing to support the conclusion that the applicant was not given an opportunity to complete his training
         period under normal conditions’. (41)
      
      69.   In those circumstances, the last part of the ground of appeal is manifestly inadmissible. In so far as the appellant has not
         established, or even seriously maintained, that the Court of First Instance distorted the facts and evidence produced to it,
         its assessment of the methods used to ensure the training of newly‑recruited members of staff represents an appraisal of the
         facts and evidence which cannot be challenged in this appeal. 
      
      70.   On the basis of the above considerations, I therefore propose that the Court of Justice reject the second ground of appeal
         in its entirety. 
      
      C –    The third ground of appeal, alleging contravention of the rules relating to liability for costs 
      71.   The last ground of appeal relates to the determination of the Court of First Instance on the allocation of the costs of the
         proceedings. That determination is set out as follows in the contested judgment: 
      
      ‘95      Under Article 87(2) of the Rules of Procedure of the Court of First Instance, the unsuccessful party is to be ordered to pay
         the costs if they have been applied for in the successful party’s pleadings. However, under Article 88 of those Rules, in
         proceedings between the Communities and their servants, the institutions are to bear their own costs. 
      
      96      In those circumstances, each of the parties will bear their own costs incurred in Case T-373/00. 
      97      By contrast, in Cases T-27/01, T-56/01 and T-69/01, the defendant asks the Court of First Instance to order the applicant
         to pay the whole of the costs, including the costs of the defendant, under the second subparagraph of Article 87(3) of the
         Rules of Procedure, and by way of derogation from Article 88 of those Rules. It considers that the bringing of those actions
         constitutes an abuse of rights. The costs incurred by it by reason of those actions must accordingly be considered to be vexatious
         within the meaning of the second subparagraph of Article 87(3) of the Rules of Procedure. 
      
      98      In Cases T-27/01 and T-69/01, the applicant asks, for his part, that his own costs be borne by the defendant under the second
         subparagraph of Article 87(3) of the Rules of Procedure, even if those actions were to be dismissed as inadmissible. In that
         regard, he pleads, in essence, that he was required to initiate those actions in order to safeguard his rights. He maintains
         that under Articles 41 and 42 of the Conditions of Employment, he was entitled and required to initiate pre‑litigation review
         procedures against the decisions to extend the probationary period and to dismiss before bringing an action before the Court
         of First Instance against those decisions. As early as the administrative procedure, the defendant had disputed that approach.
         The defendant was responsible for that uncertainty. Accordingly, the applicant maintains that he was required to bring simultaneous
         actions in Cases T‑373/00, T‑27/01 and T‑69/01. 
      
      99      The Court of First Instance considers, contrary to what the applicant contends, that it is wholly clear from Article 41(iii)
         of the Conditions of Employment that decisions to extend the probationary period and to dismiss during the probationary period
         can never be the subject of a request for pre‑litigation review and complaint. The object of each of those decisions was “not
         to confirm the appointment of a member of staff serving a probationary period” in terms of that provision. 
      
      100      Therefore, the bringing of the actions in Cases T-27/01 and T‑69/01 obliged the defendant to incur costs unreasonably. 
      101      As regards Case T-56/01, lodged with the Registry of the Court of First Instance on 13 March 2001, the applicant brought that
         action for a declaration of failure to act by reason of the lack of a response to the complaint made on 5 February 2000, where,
         first, that complaint was the subject of an implied rejection under Article 8.2.1 of the Staff Rules one month after the complaint
         was raised and, secondly, the President of the ECB rejected the applicant’s complaint on 12 March 2001. 
      
      102      Therefore, without it being necessary to consider whether the action must be dismissed as being inadmissible by reason of
         failure to give formal notice before bringing an action for a declaration of failure to act, the fact remains that, when the
         action was initiated in Case T-56/01, or at the very latest during the days immediately following that date, the applicant
         knew that the defendant had defined its position for the purposes of the second paragraph of Article 232 EC. However, he did
         not take the appropriate measures to avoid the defendant incurring costs unreasonably in relation to that action. 
      
      103      Accordingly, rather than ordering the defendant to pay the costs incurred by the applicant, as the latter requests, the applicant
         should be ordered to pay one third of the costs incurred by the defendant in Cases T-27/01, T-56/01 and T‑69/01.’ 
      
      72.   Mr Tralli maintains that the contested judgment is vitiated by an error of law in that regard. He argues that, contrary to
         what the Court of First Instance held, the actions in Cases T-27/01, T-56/01 and T-69/01 were brought on proper grounds. 
      
      73.   In that regard, it should be pointed out that the second paragraph of Article 58 of the EC Statute of the Court of Justice
         states that ‘no appeal shall lie regarding only the amount of the costs or the party required to pay them’. Moreover, the
         Court has held that ‘where all the other pleas put forward in an appeal have been rejected, any plea challenging the decision
         of the Court of First Instance on costs must be rejected as inadmissible by virtue of [the provision mentioned above]’.(42)
      
      74.   Since I am of the opinion that all the other pleas put forward in the appeal should be rejected, the last plea, directed against
         the decision of the Court of First Instance relating to the allocation of costs, should be declared to be inadmissible in
         accordance with the case-law referred to. 
      
      V –  Conclusion 
      75.   In the light of all the above considerations, I therefore propose that the Court dismiss the appeal and that the appellant
         be ordered to pay the costs, in accordance with Articles 118 and 69(2) of the Rules of Procedure of the Court of Justice.
         
      
      1 –	 Original language: French.
      
      2 –	Article 112(1) EC provides that the Governing Council of the ECB is to comprise the members of the Executive Board of the
         ECB and the Governors of the national central banks. 
      
      3 –	Article 112(2) EC provides that the Executive Board is to comprise the President, Vice‑President and four other members:
         these are to be nominated by common accord of the governments of the Member States, on a recommendation from the Council of
         the European Union, after it has consulted the European Parliament and the Governing Council of the ECB. 
      
      4 –	Cases T-373/00, T-27/01, T-56/01 and T-69/01 [2002] ECR-SC I-A-97 and II-453 (‘the contested decision’). 
      
      5 –	The conditions were adopted by Decision 1999/330/EC of the European Central Bank of 9 June 1998 as amended on 31 March
         1999 (OJ 1999 L 125, p. 32) (‘the Conditions of Employment’). 
      
      6 –	OJ 1999 L 125, p. 34 (‘the Rules of Procedure’). 
      
      7 –	Otherwise referred to as ‘the decision to extend the probationary period’. 
      
      8 –	Otherwise referred to as ‘the decision to dismiss’. 
      
      9 –	Appeal, point 36. 
      
      10 –	Case 9/56 Meroni  v High Authority [1958] ECR 133. See also, to that effect, X v ECB (cited above), paragraphs 102 to 104. 
      
      11 –	Meroni, at pp. 172 and 173. 
      
      12 –	See K. Lenaerts, ‘Regulating the regulatory process: “delegation of powers” in the European Community’, European Law Review, 1993, p. 23 (at pp. 40 to 42). 
      
      13 –	See also, to that effect, X v ECB, paragraph 102. As regards legal literature, see, inter alia, K. Lenaerts, cited above, pp. 41 and 42, and Y. Gautier, La délégation en droit communautaire¸ thesis presented and argued on 7 January 1995, pp. 357 and 358. 
      
      14 –	For a discussion of the conditions applying to delegation, see Y. Gautier, cited above, p. 418 et seq. 
      
      15 –	Meroni, p. 150. 
      
      16 –	Ibidem, pp. 149 and 150. 
      
      17 –	Ibidem, p. 151. 
      
      18 –	Ibidem, pp. 151, 152 and 154. 
      
      19 –	On the distinction between rules which are essential to the subject-matter envisaged and those which are ‘of an implementing
         nature’ for the purposes of Articles 202 and 211 EC, see, inter alia, Case 25/70 Köster [1970] ECR 1161, paragraph 6, and Case C-240/90 Germany  v Commission [1992] ECR I-5383, paragraphs 36 and 37. 
      
      20 –	See, inter alia, Case 23/75 Rey Soda [1975] ECR 1279 and Joined Cases 279/84, 280/84, 285/84 and 286/84 Rau and Others v Commission [1987] ECR 1069, paragraph 14, together with Joined Cases T-64/01 and T-65/01 Afrikanische Frucht-Compagnie and Internationale Fruchtimport Weichert v Council and Commission [2004] ECR II-0000, paragraph 118. 
      
      21 –	Appeal, point 36. 
      
      22 –	Case C-409/02 P Pflugradt v ECB [2004] ECR I-0000, paragraphs 33 to 37. 
      
      23 –	See also, in that regard, the reasons given by the Court of First Instance in the contested judgment (at paragraphs 50
         to 52). 
      
      24 –	It is well-established that each Community institution and body enjoys a broad discretion in the organisation of its departments:
         as regards the Community institutions, see inter alia Joined Cases 109/63 and 13/64 Muller v Commission [1964] ECR 1293 and Case 69/83 Lux v Court of Auditors [1984] ECR 2447, paragraph 17, and as regards Community bodies established by the Treaty, see inter alia Case C-15/00 Commission v EIB [2003] ECR I-7281, paragraph 67, and Joined Cases T-178/00 and T-341/00 Pflugradt v ECB [2002] ECR II-4035; ECR-SC I-A-205 and II-1039, confirmed on appeal by judgment of 14 October 2004 in Case C‑409/02 P Pflugradt v ECB. 
      
      25 –	See, inter alia, Case 5/85 AKZO Chemie v Commission [1986] ECR 2585, paragraph 35. 
      
      26 –	Under Article 17 of the Treaty of 8 April 1965 establishing a single Council and a single Commission of the European Communities
         (otherwise known as ‘the Merger Treaty’). 
      
      27 –	AKZO Chemie v Commission, paragraph 36. 
      
      28 –	Ibidem, paragraph 37. 
      
      29 –	Ibidem. 
      
      30 –	Ibidem. 
      
      31 –	Council Regulation of 6 February 1962, First Regulation implementing Articles [81] and [82] of the Treaty (OJ, English
         Special Edition 1959-1962, p. 87). See Joined Cases 46/87 and 227/88 Hoechst v Commission [1989] ECR 2859, paragraphs 44 to 46, and Joined Cases 97/87, 98/87 and 99/87 Dow Chemical Ibérica and Others v Commission [1989] ECR 3165, paragraph 58. 
      
      32–	Case T-254/99 Maja v Commission [2003] ECR II-757, paragraph 43.
      
      33–	Case T-275/94 CB  v Commission [1995] ECR II-2169, paragraph 71.
      
      34 –	Case C-137/92 P Commission v BASFand Others [1994] ECR I-2555, paragraph 71. 
      
      35 –	Case C-191/95 Commission v Germany [1998] ECR I-5449, paragraph 48. 
      
      36 –	Appeal, point 44. 
      
      37 –	See, amongst numerous examples, the concepts of ‘customer belonging to that area’ in the context of a commercial agency
         contract in Case C-104/95 Kontogeorgas [1996] ECR I-6643, paragraphs 25 to 27, of ‘exceptional circumstances’ constituting exceptions to the principle of separate
         valuation of items in the assets and liabilities of a company’s balance sheet in Case C‑275/97 DE + ES Bauunternehmung [1999] ECR I-5331, paragraphs 31 and 32, and of ‘charges’ in the field of legislation relating to indirect taxation levied
         on increases of share capital in Case C‑206/99 SONAE [2001] ECR I-4679, paragraphs 22 to 26. 
      
      38 –	Pflugradt, paragraph 54, confirmed on appeal by the Court of Justice. 
      
      39 –      Author’s emphasis. 
      
      40 –	See, by way of recent examples, Case C-122/01 P T. Port v Commission [2003] ECR I-4261, paragraph 27, and order of 9 July 2004 in Case C-116/03 Fichtner v Commission [2004] ECR I‑0000, paragraph 33. 
      
      41 –	Contested judgment, paragraph 73. 
      
      42 –	See Joined Cases C-302/99 P and C-308/99 P Commission and France v TF1 [2001] ECR I‑5603, paragraph 31, and Joined Cases C-57/00 P and C-61/00 P Freistaat Sachsen and Others v Commission [2003] ECR I-9975, paragraph 124, together with the order of 13 December 2000 in Case C-39/00 P SGA v Commission [2000] ECR I-11201, paragraph 77. See also, to that effect, Case C‑396/93 P Henrichs v Commission [1995] ECR I-2611, paragraph 66, and the order of 13 December 2000 in Case C-44/00 P Sodima v Commission [2000] ECR I‑11231, paragraph 93.