CELEX: 62011FJ0007
Language: en
Date: 2012-12-13
Title: JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (Second Chamber) 13 December 2012.#AX v European Central Bank (ECB).#Civil service — ECB Staff — Disciplinary proceedings — Suspension of a staff member without reduction of his basic salary — Withdrawal of a decision — Rights of the defence — Access to the file — Statement of reasons — Reasons for a decision — Allegation of breach of professional duties — Serious misconduct.#Joined Cases F‑7/11 and F‑60/11.

JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (Second Chamber)
      13 December 2012 (*)
      
      (Civil service – ECB Staff – Disciplinary proceedings – Suspension of a staff member without reduction of his basic salary – Withdrawal of a decision – Rights of the defence – Access to the file – Statement of reasons – Reasons for a decision – Allegation of breach of professional duties – Serious misconduct)
      In Joined Cases F‑7/11 and F‑60/11,
      ACTIONS under Article 36.2 of the Protocol on the Statute of the European System of Central Banks and of the European Central
         Bank, annexed to the EU Treaty and the FEU Treaty,
      
      AX, member of the staff of the European Central Bank, residing in Fredericia (Denmark), represented by L. Levi and M. Vandenbussche,
         lawyers, 
      
      applicant,
      v
      European Central Bank (ECB), represented, 
      
      in Case F‑7/11, by P. Embley and E. Carlini, acting as Agents, assisted by B. Wägenbaur, lawyer, 
      and in Case F‑60/11, by P. Embley and M. López Torres, acting as Agents, assisted by B. Wägenbaur, lawyer,
      defendant,
      THE CIVIL SERVICE TRIBUNAL (Second Chamber)
      composed of M.I. Rofes i Pujol, President, I. Boruta (Rapporteur) and K. Bradley, Judges, 
      Registrar: X. Lopez Bancalari,
      having regard to the written procedure and further to the hearing on 26 April 2012,
      gives the following
      Judgment
      1        By applications received at the registry of the Tribunal on 2 February and 25 May 2011, AX brought two actions, the first
         registered as Case F‑7/11 and the second as Case F-60/11, seeking, principally, annulment of the decisions of the European
         Central Bank (ECB) of 4 August 2010 and 23 November 2010, respectively, suspending him.
      
       Legal context
      2        Article 6 TEU provides: 
      
      ‘The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union
         of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties.
         
      
      …’ 
      3        Under Article 41 of the Charter: 
      
      ‘1. Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the
         institutions, bodies, offices and agencies of the Union.
      
      2. This right includes:
      (a)      the right of every person to be heard, before any individual measure which would affect him or her adversely is taken;
      (b)      the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality
         and of professional and business secrecy;
      
      (c)      the obligation of the administration to give reasons for its decisions. 
      …’
      4        Protocol 4 annexed to the EU Treaty and the FEU Treaty, entitled ‘Protocol on the Statute of the European System of Central
         Banks and of the [ECB]’ (‘the Statute of the ESCB and of the ECB’) establishes a European system of central banks bringing
         together the ECB and the national central banks of the Member States of the European Union. 
      
      5        On the basis of Article 36.1 of the Statute of the ESCB and of the ECB, the Governing Council of the ECB adopted, on 9 June
         1998, the conditions of employment of the staff of the ECB, amended on several occasions (‘the conditions of employment’).
      
      6        Article 8(c) of the conditions of employment, in their version applicable to the present disputes, as transmitted by the ECB
         and not contested by the applicant, provides: 
      
      ‘No specific national law governs these Conditions of Employment. The ECB shall apply (i) the general principles of law common
         to the Member States, (ii) the general principles of European [Union] law, and (iii) the rules contained in the [EU] regulations
         and directives concerning social policy which are addressed to Member States. Whenever necessary, these legal instruments
         [are] implemented by the ECB. [EU] recommendations in the area of social policy [are] given due consideration. In interpreting
         the rights and obligations under the present Conditions of Employment, due regard [is] shown for the authoritative principles
         of the regulations, rules and case-law which apply to the staff of the [EU] institutions.’ 
      
      7        Article 43 of the conditions of employment is worded as follows:
      
      ‘The Executive Board may suspend a member of staff against whom an allegation of serious breach of professional duties has
         been made immediately after they have been heard, save in exceptional circumstances.
      
      The decision shall specify whether the ECB will continue to pay the full basic salary during the period of suspension or whether
         to withhold a part thereof. …’ 
      
      8        On the basis of Article 12.3 of the Protocol on the Statute of the ESCB and of the ECB, the Governing Council adopted, on
         19 February 2004, the version of its rules of procedure in force at the material time (OJ 2004 L 80, p. 33), which provides
         in Article 21.3 that the Executive Board is to adopt the Staff Rules that implement the Conditions of Employment.
      
      9        On the basis of Article 21.3 of the rules of procedure, the Executive Board adopted the version of the ECB Staff Rules in
         force at the material time (‘the Staff Rules’) which provide in Article 8.1.6: 
      
      ‘Decisions taken by the Executive Board shall be subject to a special appeals procedure. A member of staff may initiate an
         appeal within two months from the date on which the Executive Board’s decision was communicated to them.
      
      The member of staff shall submit the appeal to the President [of the ECB] together with any relevant documents. The request
         shall clearly state the reasons for challenging the decision and the relief sought.
      
      The President shall notify the Executive Board’s decision to the member of staff within two months from the date on which
         the appeal was submitted.’
      
      10      The rules governing ECB internal administrative inquiries are set out in Administrative Circular No 01/2006, adopted by the
         Executive Board on 21 March 2006 (‘Circular No 1/2006’). Article 2(1) of that circular provides that the purpose of an administrative
         inquiry is to clarify the facts but that it is without prejudice to any disciplinary procedure.
      
      11      Article 6, paragraph 14, of Circular 01/2006 states that at the end of the administrative inquiry, the person or the panel
         conducting that inquiry (‘the panel’) must submit a reasoned report to the Executive Board or to the person who is responsible
         for such matters.
      
      12      Article 7, paragraph 3, of Circular 01/2006 provides: 
      
      ‘ECB employees who are the subject of the administrative inquiry shall be:
      (a)      informed by the person conducting the inquiry, or the panel, prior to the submission of the reasoned report, of the content
         of the alleged breach of professional duties and granted access to documents related to the allegations made against them
         which disclose facts important for the exercise of their rights of defence; and 
      
      (b)      granted an opportunity to present their view and add their comments on the conclusions referring to them to ensure the completeness
         of the inquiry file; the latter shall be included in the reasoned report; and
      
      (c)      allowed to seek the assistance of a staff representative.
      ECB employees or other individuals involved in the administrative inquiry shall also be granted access to all facts which
         refer to their person, as well as personal data in order to ensure their completeness and accuracy, and shall have the right
         to obtain from the lead inquirer acting as the controller the rectification without delay of any such inaccurate or incomplete
         personal references.’
      
      13      On the basis of Article 12.3 of the Protocol on the Statute of the ESCB and of the ECB, the Governing Council adopted, on
         4 March 2004, Decision ECB/2004/3 on public access to European Central Bank documents (OJ 2004 L 80, p. 42), which defines
         the conditions and limits according to which the ECB gives public access to its documents.
      
       Factual background to the dispute 
      14      The applicant entered the employment of the ECB on 1 June 2003. 
      
      15      Following an internal recruitment procedure, on 1 June 2007 he was appointed to the post of Head of Division in the Office
         Services Division within the Administration Directorate General (DG), a division renamed, as from 19 February 2008, ‘Administrative
         Services Division’. The tasks of that division were, according to a Functions Paper approved by the Executive Board on 17
         February 2009 (‘the Functions Paper’) to ‘provide the central mail, switchboard and copying services’, to ‘manage the out-tasking
         of cleaning, in-house catering, hotel block reservation, interpretation and business travel services and to provide meeting
         services’, to provide ‘a driving and transportation service’, to ‘receive deliveries, manage the storeroom, provide furniture
         and distribute goods internally’. 
      
      1.     The suspension decision of 6 April 2010 
      16      On 26 February 2010 the Executive Board decided, on the basis of Circular No 1/2006, to open an administrative inquiry with
         the aim of clarifying ‘all facts and circumstances related to the purchase of selected items and the use of selected ECB assets
         by the staff of [the Administrative Services Division]’ and ‘all facts and circumstances in relation to a possible breach
         of professional duties by members of staff in relation to such purchase/use’. The decision was also made not to inform the
         staff members concerned by the inquiry immediately, so as not to harm the investigation. For the purposes of this inquiry,
         the Director of the Directorate Internal Audit was appointed as the Lead Inquirer (‘the decision of 26 February 2010’). 
      
      17      On 26 March 2010 the applicant was interviewed by the panel regarding the purchase by the Administrative Services Division
         of three different categories of items, namely, (i) brand X laptop computers; (ii) other types of laptop computers and (iii)
         E-book readers. According to the ECB, the panel informed the applicant during that hearing that he was the subject of an administrative
         inquiry. However, according to the applicant, the panel only decided on 6 April 2010 that he was to be the subject of the
         internal administrative inquiry. Further, again according to the applicant, he asked during that hearing to be sent a copy
         of the decision of 26 February 2010 by which the Executive Board decided to open an inquiry. That decision was, according
         to the applicant, never sent to him. 
      
      18      Draft minutes of the interview of 26 March 2010 were sent to the applicant for comment, by e-mail on 1 April 2010 and by post
         on 22 April 2010.
      
      19      From 28 March 2010 and at least until 25 May 2011, the date when the second action was brought before the Tribunal, the applicant
         was on sick leave.
      
      20      By decision of 6 April 2010, taking effect on the following day, the Executive Board suspended the applicant on full basic
         salary for the duration of the internal administrative inquiry (‘the decision of 6 April 2010’). That decision stated that
         it was based, in particular, on unrest within the Administrative Services Division and on the need to facilitate the proper
         conduct of the administrative inquiry and on the status update report on the panel’s investigative work (‘the investigation
         status report dated 6 April 2010’, communicated on the same date to the Executive Board. 
      
      2.     The suspension decision of 4 August 2010 
      21      By letter of 16 April 2010, the applicant requested the ECB to send him a copy of the decision of the Executive Board of 26
         February 2010 and of the supporting documentation, together with any document that had been submitted to the Executive Board
         with a view to the adoption of the decision of 6 April 2010.
      
      22      By letter of 28 April 2010, the Director-General of the Directorate-General ‘Human Resources, Budget and Organisation’ (‘the
         Director-General of the DG HR’) and the human resources expert (‘the HR expert’) informed the applicant, inter alia, that
         if the reasoned report, drawn up at the end of the administrative inquiry, concluded that he had breached his professional
         duties, he would be granted access to the inquiry documents relating to the relevant facts under Article 7(3) of Circular
         No 1/2006. However, the letter indicated that at that stage of the procedure, as the content of the reasoned report depended
         on the result of the administrative inquiry, access to those documents could not be granted to him. 
      
      23      By letter of 10 May 2010 the applicant requested the Director-General of the DG HR and the HR expert to grant him access to
         the decision of 26 February 2010 and any other decisions adopted by the Executive Board between that date and 6 April 2010.
         Further, in that letter the applicant complained that the circumstances of his interview by the panel were irregular on the
         ground that he did not in fact have the opportunity to be heard. Annexed to that letter were the applicant’s comments on the
         minutes of the interview of 26 March 2010.
      
      24      Also on 10 May 2010, the applicant wrote to the Director-General of the DG Internal Audit to inform him that he considered,
         first, that the Director General of the DG HR and the HR expert had no authority to receive his observations on the minutes
         of his interview of 26 March 2010 and, secondly, that the conduct of the panel did not comply with the requirements of Circular
         No 1/2006.
      
      25      By letter of 22 May 2010, the Director General of the DG HR and the HR expert confirmed to the applicant the content of their
         letter of 28 April 2010. 
      
      26      On 3 June 2010 the applicant brought, on the basis, inter alia, of Article 8.1.6 of the Staff Rules, a special appeal against
         the decision of 6 April 2010. 
      
      27      By letter of 23 June 2010 the applicant requested, pursuant to Decision ECB/2004/3, the right of access, first, to the decision
         of 26 February 2010 to open an inquiry and the supporting documents; secondly, the investigation status report dated 6 April
         2010, submitted to the Executive Board prior to the adoption of the decision of 6 April 2010, and all other documents submitted
         to the Executive Board with a view to the adoption of that decision; and, thirdly, the decision of 6 April 2010. 
      
      28      By letter dated 24 June 2010 the applicant was invited by the Director General of the DG HR and by the HR expert to attend
         a hearing on 14 July 2010 at 11.00 hrs. In that letter, it was stated that, should that date not be convenient for him, the
         applicant could propose a new date, which should not be later than 28 July 2010, or alternatively, present his comments in
         writing by 14 July 2010.
      
      29      By letter dated 29 June 2010 the applicant indicated that he would not attend the hearing scheduled for 14 July 2010, in particular
         because he had not had access to the file, that the special appeal procedure could not be used to remedy the fact that he
         had not been heard prior to the adoption of the decision of 6 April 2010 and that he had not been in a position to understand
         the nature of the allegations and accusations brought against him. 
      
      30      By letter dated 1 July 2010, the Director General of the DG HR and the HR expert rejected the applicant’s arguments, on the
         grounds, first, that the hearing of the applicant was part of a procedure which was separate from the special appeal brought
         by the applicant and, second, that the applicant had been fully informed of the allegations which were the subject of the
         hearing. Moreover, they again invited the applicant to attend a hearing and also informed him that if he persisted in refusing
         to attend a hearing, a decision would nonetheless be taken concerning his case. 
      
      31      By letter of 5 July 2010 the Director General of the DG Secretariat and Language Services and the Director General of the
         DG HR informed the applicant that he could not base his request for access to certain documents on Decision ECB/2004/3 on
         public access to ECB documents since he was an ECB employee. In their opinion, the request had to be regarded as being based
         on Article 7(3) of Circular No 1/2006. The two Directors General then rejected the applicant’s request in so far as it related
         to ‘the 26 February 2010 decision ... to open an administrative inquiry procedure [and] documentation submitted to the Executive
         Board in view of its decisions’, ‘[the investigation status report dated 6 April 2010] submitted to the Executive Board on
         6 April 2010 in view of the decision of 6 April 2010 ... [and] any additional documents submitted to the Executive Board in
         view of [that decision]’. As regards the applicant’s request for access to the suspension decision of 6 April 2010, the two
         Directors General informed him that that decision had already been communicated to him. 
      
      32      By letter of 6 July 2010 the applicant again refused to attend a hearing, on the ground that the Executive Board had no power
         to take a new suspension decision while the suspension decision of 6 April 2010 remained in force. 
      
      33      By letter of 7 July 2010 the Director General of the DG HR and the HR expert confirmed to the applicant that, after his hearing,
         the Executive Board would take a new decision on his suspension. They also indicated that the suspension procedure was entirely
         separate from the special administrative review procedure he had initiated (‘the first special appeal’) and that, in those
         circumstances, the Executive Board could rule on the first special appeal and then take a separate decision on the suspension.
         Lastly, the applicant was again asked to confirm that he would attend the hearing scheduled for 14 July 2010 or on any other
         date at his convenience, but no later than 28 July 2010, or alternatively submit his comments in writing by 28 July 2010.
         Annexed to that letter was an excerpt from the minutes of the meeting of the Executive Board of 29 June 2010, appointing two
         persons as members of the panel responsible for hearing the applicant, and a secretary to the panel. 
      
      34      On 9 July 2010 the applicant again stated that he had no intention of attending a hearing.
      
      35      On 12 July 2010 the Director General of the DG HR and the HR expert repeated their invitation to the applicant to attend a
         hearing.
      
      36      By e-mail of 13 July 2010 the applicant repeated that it was impossible for him to attend a hearing while the decision of
         6 April 2010 remained in force.
      
      37      The applicant did not attend the hearing scheduled by the ECB for 14 July 2010. A meeting of the members of the panel responsible
         for hearing the applicant took place instead of the hearing.
      
      38      By letter dated 21 July 2010, the Director General of the DG HR and the HR expert sent to the applicant for his comments a
         document entitled ‘Draft summary of the hearing of [the applicant]’ which comprised a record of the meeting which took place
         on 14 July 2010.
      
      39      By letter dated 26 July 2010 the applicant informed the Director General of the DG HR and the HR expert that on 21 July he
         had received the document entitled ‘Draft summary of the hearing of [the applicant]’ but that he could not submit comments
         on it since no hearing had taken place. He reiterated that the ECB could not adopt a new suspension decision without first
         withdrawing the decision of 6 April 2010. Further, he stated that, in his opinion, the document entitled ‘Draft summary of
         the hearing of [the applicant]’ set out, for the first time, some of the allegations brought against him, namely (i) that
         he had initiated, authorised or permitted, in his capacity as Head of the Administrative Services Division, the purchase of
         brand X laptop computers, other laptop and desktop computers and E-book readers, (ii) that the business reasons underlying
         those purchases were questionable in the light of the role and responsibilities of the Administrative Services Division as
         outlined in the Functions Paper, and (iii) that, as the Head of the Administrative Services Division, the applicant had been
         unable to provide a reasonable explanation of the whereabouts of the majority of those articles.
      
      40      Also on 26 July 2010, the European Anti-Fraud Office (OLAF) notified the ECB of its decision to open an investigation. The
         opening of that investigation brought to an end the administrative inquiry opened by the ECB on 26 February 2010. 
      
      41      By letter of 3 August 2010 the President of the ECB informed the applicant that the Executive Board had upheld his first special
         appeal and had annulled, as from 4 August 2010 at 23.59 hrs, the suspension decision of 6 April 2010. That letter informed
         the applicant that the administrative inquiry would continue and that the Executive Board would take a new decision on his
         suspension the following day. The decision of the Executive Board, annexed to that letter, stated that it was based on the
         fact that the applicant had not been heard in accordance with Article 43 of the conditions of employment, in respect of the
         suspension decision. Further, that decision made an award, as symbolic compensation for the non‑material damage suffered by
         the applicant as a result of the suspension decision of 6 April 2010, of the sum of one euro. 
      
      42      By decision of 4 August 2010, notified on the same date, the Executive Board suspended the applicant as of 5 August 2010 on
         full basic pay (‘the decision of 4 August 2010’). That decision stated that it was based on the existence of allegations which,
         if established, would constitute a serious breach by the applicant of his professional duties, in view of the damage to the
         reputation of the ECB which they could cause and the applicant’s high-ranking position within the institution, and on the
         need to facilitate the proper conduct of the OLAF investigation.
      
      43      In the letter of 4 August 2010 from the Director General of the DG HR and the HR expert accompanying that decision, it was
         pointed out in particular that the applicant had refused on several occasions to attend a hearing before the adoption of that
         decision. That letter, however, invited the applicant to attend a hearing on 11 August 2010 at 11.00 hrs or at any earlier
         date at his convenience or failing that, to present his comments in writing by 3 September 2010.
      
      3.     The decision of 23 November 2010 taken after reconsideration 
      44      By letter of 10 August 2010 the applicant stated that he was not able to attend the hearing scheduled for 11 August 2010 ‘for
         medical reasons’ and that he was going to provide his comments in writing by 3 September. For that purpose, he asked to be
         informed of the allegations against him which, he said, were not contained either in the decision of 4 August 2010 or in the
         covering letter. The applicant also requested access to the investigation file and, in particular to the documents mentioned
         in the decision of 4 August, namely, the investigation status reports dated 6 April 2010 and 19 July 2010. 
      
      45      By letter of 17 August 2010 the Director General of the DG HR and the HR expert informed the applicant that the allegations
         made against him and communicated to the Executive Board were the following: 
      
      First, ‘[the a]llegations communicated to the Executive Board, as part of the [investigation status report] dated 6 April
         2010, following an interview with [the applicant] on 26 March 2010, the minutes of which were sent [to the applicant] … and
         on which he provided written comments ... on 10 May 2010 [those allegations consisting of]:
      
      (i)       the purchase of [brand X] laptops, other laptops and E-book readers by the [Administrative Services Division];
      (ii)       the business reason, the use and the whereabouts of such items being uncertain;
      [Second, the a]llegations communicated to the Executive Board, as part of the [investigation status report] dated 6 April
         2010, which were again summarised and documented in the [minutes of the hearing held on] 14 July 2010, the draft of which
         was sent by to [the applicant] on 21 July 2010 [, namely:] 
      
      (i)       a number of items such as [brand X] laptops, other types of laptop/desktops and E-book readers have been purchased from one
         of two centralised budget centres for which the [Administrative Services Division] carries responsibility and the current
         location of the majority of those items is unknown;
      
      (ii)       [the applicant] has initiated, authorised or permitted, in his capacity as Head of the [Administrative Services Division]
         the purchase of those items;
      
      (iii)       the business reasons underlying those purchases are questionable also with regard to the role and responsibilities of the
         [Administrative Services Division] as outlined in the Functions Paper;
      
      (iv)      [the applicant], as responsible Head of the [Administrative Services] Division cannot give a reasonable explanation of the
         whereabouts of the majority of the items.
      
      [Third, the a]llegations communicated to the Executive Board, as part of the investigation status report dated 19 July 2010,
         and which, according to that document, were communicated to [the applicant] on 29 June 2010 [namely]:
      
      (i)       127 purchases by the [Administrative Services Division] of items which may be subdivided into 13 different categories, the
         most prominent categories being: (i) [brand X] computers and related accessories; (ii) other computers and related accessories;
         (iii) other IT hard[ware] and software; (iv) navigation systems and (v) mobile phones. Thus far, the current location of only
         a limited number of the 127 items has been identified; and
      
      (ii)       [the u]ncertainties over the business purpose underlying the purchase of those items, and any project or task to which they
         related as well as the relationship between the respective project or task and the functional responsibilities of the [Administrative
         Services Division]. 
      
      [The Functions Paper] defines the role and responsibilities of the [Administrative Services Division] as follows:
      –        Provides the central mail, switchboard and copying services;
      –        Manages the out-tasking of cleaning, in-house catering, hotel block reservation, interpretation and business travel services.
         Provides meeting services;
      
      –        Provides a driving and transportation service;
      –        Receives deliveries, manages storeroom, provides furniture and distributes goods internally.
      Pursuant to the Executive Board approved procurement policy of the ECB, the “responsibility for provision and procurement
         is centralised, [inter alia, for all] centralised IT investments (including hardware and software)”, and entrusted to [the
         Infrastructure and Operations division] of [the Directorate General IT Systems].’
      
      46      By letter of 26 August 2010 the applicant requested access to 27 documents in order to be able to present his comments on
         the allegations brought against him before 3 September 2010. 
      
      47      By letter of 30 August 2010 the ECB provided full versions of 19 of the 27 documents requested, and two other documents. As
         regards the other eight documents requested, two were communicated only in their final version, excluding preparatory material,
         four were not communicated pending clarification from the applicant regarding the information he wished to obtain and the
         grounds of his request, while two were not sent for the reason that one concerned an administrative inquiry and the other
         was available from external suppliers. 
      
      48      By letter of 1 September 2010 the applicant requested access to the eight documents which had not yet been sent to him, on
         the ground that those documents constituted important elements in his defence. In that letter the applicant asked that the
         deadline fixed for the submission of written comments, due to expire on 3 September 2010, be extended by seven days.
      
      49      On 3 September 2010, the applicant submitted a first set of comments on the decision of 4 August 2010 and stated that he reserved
         the right to add to them on the ground that he had just obtained access to some of the documents requested and had not yet
         had time to analyse them in detail. 
      
      50      By letter of 6 September 2010 the Director General of the DG HR and the HR expert agreed to extend the deadline, by which
         the applicant was to submit his written comments, to 10 September 2010. They also informed the applicant that they would not
         provide him with the eight documents requested on the ground that he was only entitled to the list of allegations brought
         against him, and that this had already been provided.
      
      51      On 10 September 2010 the applicant submitted a second set of comments on the adoption of the decision of 4 August 2010.
      
      52      By letter of 21 September 2010 the Director General of the DG HR and the HR expert informed the applicant that the comments
         submitted had been passed on to the Executive Board. 
      
      53      On 30 September 2010 the applicant brought, under Article 8.1.6. inter alia of the Staff Rules, a special appeal against the
         decision of 4 August 2010 (‘the second special appeal’). 
      
      54      By decision of 23 November 2010, the second special appeal against the decision of 4 August 2010 was dismissed by the Executive
         Board. In its decision the Executive Board stated that it considered that it was necessary and proportionate to maintain the
         applicant’s suspension in view of the need to facilitate the investigation undertaken by OLAF. Accompanying that decision
         was a letter from the President of the ECB setting out in detail the grounds which had led the Executive Board to dismiss
         the second special appeal. 
      
      55      On the same date, the Executive Board adopted, after reconsideration of the applicant’s situation, a new decision confirming
         the decision of 4 August 2010 (‘the decision of 23 November 2010 taken after reconsideration’). That decision stated that
         it had been taken after the Executive Board had requested the members of the panel to prepare a report containing their observations
         on the comments made by the applicant. As grounds for the applicant’s suspension, it was stated, first, that the Executive
         Board had observed that a number of comments made by the applicant did not coincide with certain of the observations and findings
         of the panel, secondly, that the applicant had not provided explanations for the 127 items forming the subject of the allegations
         of serious breach by the applicant of his professional duties, and that the applicant’s observations were not such as to render
         those allegations sufficiently improbable or manifestly unfounded and, thirdly, that the OLAF investigations were still ongoing
         in the context of its inquiry. The letter accompanying that decision contained excerpts of the findings of the panel on which
         the Executive Board stated that it had relied.
      
      56      In January 2011 the ECB informed the applicant of its decision to initiate the disability procedure with regard to him. 
      
      57      On 21 January 2011, the applicant brought, under Article 8.1.6. of the Staff Rules in particular, a special appeal against
         the decision of 23 November 2010 taken after reconsideration (‘the third special appeal’). 
      
      58      On 2 February 2011 the applicant brought an action before the Tribunal against the decision of 4 August 2010. That action
         was registered as Case F-7/11.
      
      59      On 15 February 2011 the applicant was examined by one of the ECB doctors. The doctor concluded that the applicant was temporarily
         unable to perform the tasks corresponding to his job description.
      
      60      On 15 March 2011 the Executive Board dismissed the third special appeal on the ground that there were no new or additional
         elements which would render sufficiently improbable or manifestly unfounded the allegations of a serious breach of professional
         duties. That decision was accompanied by a letter from the President of the ECB explaining in more detail the reasons which
         had led the Executive Board to dismiss the applicant’s third special appeal. 
      
      61      On 16 March 2011 the Director General of the DG HR and the HR expert informed the applicant that, from 28 March 2011, he would
         no longer receive his salary but would receive an equivalent disability allowance. 
      
      62      By letter of 22 March 2011 the applicant was invited by OLAF to attend a hearing scheduled for 12 and 13 May 2011.
      
      63      On 6 June 2011 the applicant informed the Director General of the DG HR and the HR expert that he was not able to attend the
         hearing arranged by OLAF.
      
      64      On 25 May 2011 the applicant brought an action against the decision of 23 November 2010 taken after reconsideration, and against
         the decision of 15 March 2011 dismissing the third special appeal. That action was registered as Case F‑60/11.
      
       Forms of order sought by the parties and procedure 
      65      In Case F-7/11, the applicant claims that the Tribunal should: 
      
      –        annul the suspension decision dated 4 August 2010;
      –        as a consequence, fully reinstate the applicant in his duties with the appropriate publicity in order to restore his good
         name;
      
      –        in any case, award compensation for the non-material damage suffered by the applicant, evaluated ex aequo et bono at EUR 20 000;
      
      –        order the ECB to pay the costs. 
      66      The ECB contends that the Tribunal should: 
      
      –        dismiss the action; 
      –        order the applicant to pay the costs. 
      67      In Case F-60/11, the applicant claims that the Tribunal should: 
      
      –        annul the decision of 23 November 2010 taken after reconsideration and, if necessary, the decision of 15 March 2011 dismissing
         the third special appeal;
      
      –        as a consequence, fully reinstate the applicant in his duties with the appropriate publicity in order to restore his good
         name;
      
      –        in any case, award compensation for the non-material damage suffered by the applicant, evaluated ex aequo et bono at EUR 20 000;
      
      –        order the ECB to pay the costs. 
      68      The ECB contends that the Tribunal should: 
      
      –        dismiss the action; 
      –        order the applicant to pay the costs. 
      69      By order of the President of the Second Chamber of the Tribunal of 23 March 2012, Cases F‑7/11 and F‑60/11 were joined for
         the purposes of the oral procedure and the final decision. 
      
       Law 
      1.     Admissibility of the actions 
       Arguments of the parties
      70      The ECB considers that the action registered as Case F‑7/11 is inadmissible, since the decision of 4 August 2010, adopted
         on a preliminary basis only, was superseded by the decision of 23 November 2010 taken after reconsideration. Therefore, that
         decision no longer adversely affected the applicant who, therefore, does not have a legal interest in contesting it.
      
      71      The applicant considers, for his part, that the decision of 4 August 2010 constitutes an act adversely affecting him, since,
         when the administration adopted the decision of 23 November 2010 taken after reconsideration, it did not withdraw or annul
         with retroactive effect the decision of 4 August 2010, but simply repealed and replaced it with another one. Therefore, the
         decision of 4 August 2010 produced legal effects from 5 August, the date when it took effect, to 23 November 2010, the date
         when it was repealed, and those effects were not removed by the decision of 23 November 2010, taken after reconsideration.
         According to the applicant, the decision of 4 August 2010 is also a challengeable act on the ground that it forms part of
         a set of decisions intended to maintain the suspension of the applicant.
      
      72      With regard to its legal interest in bringing proceedings, the applicant states that he has an interest in seeking annulment
         of the decision of 4 August 2010, as that annulment is liable to produce legal consequences, in particular by preventing the
         alleged illegality from recurring in the future or from being applied to other members of staff. Furthermore, that annulment
         could serve as the basis for a possible action in damages. Finally, the applicant considers that he has a legal interest in
         bringing proceedings against the decision of 4 August 2010 in order to have the issue of the legality of his suspension resolved
         as quickly as possible. 
      
       Findings of the Tribunal
      73      First, it should be noted that the forms of order sought by the applicant in Cases F‑7/11 and F‑60/11, asking the Court to
         fully reinstate him in his duties, with the appropriate publicity in order to restore his good name, are inadmissible. It
         is not for the European Union Courts to issue injunctions to the administration or to make declaratory rulings (see, by analogy,
         judgment of 12 June 2002 in Case T‑187/01 Mellone v Commission, paragraph 16).
      
      74      Secondly, it should be recalled, with regard to the decision of 23 November 2010 taken after reconsideration, that, according
         to the case-law, an action for annulment brought against a decision which merely confirms an earlier decision not challenged
         in due time is inadmissible (see, to that effect, judgment of 15 December 1988 in Joined Cases 166/86 and 220/86 Irish Cement v Commission, paragraph 16). 
      
      75      However, it should be noted that although the decision of 23 November 2010 taken after reconsideration mentions having confirmed
         the decision of 4 August 2010, it nevertheless reconsidered the situation of the applicant in accordance with new evidence
         that could have an effect on his situation, namely its observations on the allegations made against him and the remarks of
         the panel in relation to those observations. Therefore, the decision of 23 November 2010 taken after reconsideration must
         be considered not merely to confirm the decision of 4 August 2010, but to constitute an independent act (see, by analogy,
         with regard to the rejection of a complaint, judgment of 21 September 2011 in Case T‑325/09 P Adjemian and Others v Commission, paragraph 32) which, since it did not expressly withdraw the decision of 4 August 2010 or expressly have retroactive effect,
         must be regarded as having produced its effects from the date when it was adopted and therefore replaced the decision of 4
         August 2010 and did not, as the ECB claims, withdraw it.
      
      76      Moreover, during the hearing, the ECB expressly stated that it considered that the decision of 23 November 2010 taken after
         reconsideration had only produced effects for the future, thus confirming that the adoption of that decision had not had the
         effect of withdrawing the decision of 4 August 2010. 
      
      77      Accordingly, and given that, according to the case-law, an applicant retains a legal interest in bringing proceedings against
         an act which has been repealed since, unlike a withdrawal, a repeal allows, for the addressees of the act concerned, the effects
         produced by that act to continue for the period during which that act has been in force (see, to that effect, judgment of
         12 February 1960 in Joined Cases 16/59, 17/59 and 18/59 Geitling and Others v High Authority; judgment of 13 December 1995 in Joined Cases T‑481/93 and T‑484/93 Exporteurs in Levende Varkens and Others v Commission, paragraphs 46 to 48), it must be held that the claims directed against the decision of 4 August 2010 are admissible.
      
      78      With regard to the action registered as Case F‑60/11, it should be noted, with regard to the claims directed against the decision
         of 15 March 2011 rejecting the third special appeal, that a special appeal forms an integral part of a complex procedure and
         is only a precondition for bringing an action. In those circumstances, claims formally directed against the dismissal of the
         special appeal must be regarded as having the effect of bringing before the court the act with adverse effect against which
         the appeal was submitted (see, by analogy, with regard to decisions of the ECB rejecting requests for pre-litigation reviews
         and complaints, order of 18 May 2006 in Case F‑13/05 Corvoisier and Others v ECB, paragraph 25), except where the scope of the dismissal of the special appeal is different from that of the act against which
         that special appeal has been brought (see, by analogy, judgement of 25 October 2006 in Case T‑281/04 Staboli v Commission, paragraph 26; Adjemian and Others v Commission, paragraph 32). Given that, in the present case, it is clear from the decision of 15 March 2011, rejecting the third special
         appeal brought against the decision of 23 November 2010 taken after reconsideration, that that appeal did not refer to any
         new element of law or fact, the decision of 15 March 2011 must be regarded as lacking any independent content. Consequently,
         the claim for annulment of that decision must be regarded as overlapping with the claim for annulment directed against the
         decision of 23 November 2010 taken after reconsideration.
      
      79      It follows from all of the above that it is appropriate to examine the claim for annulment directed, in the context of the
         action registered as Case F‑7/11, against the decision of 4 August 2010 and, in the context of the action registered as Case
         F‑60/11, against the decision of 23 November 2011 taken after reconsideration, and the claim for compensation made in connection
         with those actions. 
      
      2.     The claims for annulment 
      80      In support of his claims for the annulment of the decision of 4 August 2010 and the decision of 23 November 2011 taken after
         reconsideration, the applicant submits three pleas alleging, essentially:
      
      –        infringement of the rights of the defence and of Article 41 of the Charter;
      –        infringement of Article 43 of the conditions of employment, manifest error of assessment and breach of the obligation to state
         reasons;
      
      –        breach of the duty to have regard to the interests of officials, breach of the principle of proportionality, and misuse of
         powers and abuse of process.
      
      81      In that regard, it should be noted that, whereas the applicant puts forward arguments concerning the obligation to state reasons
         in the context of the first plea and arguments concerning proportionality between the measure adopted and the allegations
         made against him in the context of the second plea, those arguments will be examined, respectively, in the context of the
         second and third pleas, since the breach of the obligation to state reasons and the breach of the principle of proportionality
         are specifically referred to in the heading of those pleas. 
      
       Infringement of the rights of the defence and of Article 41 of the Charter
      82      The first plea must be understood as consisting of three parts alleging, respectively: first, that the applicant had not been
         heard by the Executive Board before the adoption of the decision of 4 August 2010; secondly, that he did not have access to
         the file before the adoption of that decision and of the decision of 23 November 2010 taken after reconsideration; and, thirdly,
         that the allegations made against him were not communicated to him before the adoption of the abovementioned decision of 4
         August 2010.
      
       The first part of the first plea 
      –       Arguments of the parties
      83      The applicant claims, in essence, that the decision of 4 August 2010 was adopted in breach of his right to be heard before
         the adoption of any decision that adversely affects him. Although the ECB invited him to participate in a hearing before the
         adoption of that decision, the applicant considers that there was no reason for him to attend as he had already been suspended
         since 6 April 2010, nor even to submit subsequent written comments on the document entitled ‘Draft summary of the hearing
         [of the applicant]’, as the meeting which took place had no valid legal basis and he had not attended it. According to the
         applicant, his participation in a hearing could have been justified only if the ECB had first withdrawn the decision of 6
         April 2010. 
      
      84      With regard to the fact that he was invited to take part in a hearing after the adoption of the decision of 6 April 2010,
         the applicant claims that, according to the case-law, it is only possible to remedy a breach of the right to be heard by having
         a hearing after the adoption of a decision adversely affecting a member of staff where it was impossible to hear the member
         of staff concerned beforehand. In the present case, the administration, if it had wanted to, could have withdrawn the decision
         of 6 April 2010 and subsequently summoned the applicant to a hearing. 
      
      85      The applicant also states that the ECB adopted the decision of 4 August 2010 in such a way that he would, in any event, remain
         suspended from his duties. Even though it accepted that the decision of 6 April 2010 was illegal, the ECB did not withdraw
         it, but simply replaced it with another identical decision so that he would remain suspended from his duties. That fact, along
         with the facts that, according to the applicant, the decisions to withdraw and to adopt a new suspension decision were taken
         consecutively and, in any event, notified on the same date, and that he had already been permanently replaced by a colleague,
         demonstrate that the administration did not want to reinstate him in his duties, in breach of the presumption of innocence.
      
      86      In its defence, the ECB considers that it has respected the applicant’s right to be heard. First, the applicant attended an
         interview organised by the panel on 26 March 2010. Second, that panel forwarded to the applicant the draft minutes of that
         interview and the latter submitted his observations on that document. Moreover, the ECB argues that the applicant made numerous
         observations throughout the procedure and that on those occasions he had the opportunity to put forward his point of view.
         In any event, the ECB notes that the case-law concerning the rights of the defence only require that the official should be
         given the opportunity to make his point of view known on the evidence against him and on which the appointing authority proposes
         to rely, but not that he should necessarily be heard. In the present case, the applicant was invited on four occasions to
         attend an interview, invitations which he declined, requesting the administration, in particular, to first withdraw its decision
         of 6 April 2010, even though no provision obliges the administration to withdraw a decision before being able to initiate
         a procedure seeking to replace that decision with another. 
      
      87      For the sake of completeness, the ECB adds that, in exceptional circumstances, a member of staff may be heard after the adoption
         of a suspension measure. In the present case, the fact that it was not possible to conduct a hearing of the applicant because
         he refused to comply, constitutes an exceptional circumstance enabling the Executive Board to take the decision of 4 August
         2010 without having heard the interested party. 
      
      88      The ECB contests the allegations that it carried out the procedure in such a way as to ensure that the applicant would remain,
         in any event, suspended from his duties. In particular, the fact that he was replaced in his duties is not, it contends, relevant,
         because it is common practice to replace a person in the event of prolonged absence. 
      
      –       Findings of the Tribunal
      89      Article 43 of the conditions of employment provides that, save in exceptional circumstances, the Executive Board must hear
         the person concerned before it can suspend him. 
      
      90      In the present case, it is apparent from the file that, prior to the adoption of the decision of 4 August 2010, the applicant
         was invited to a hearing on four occasions, by letters dated 24 June and 1, 7 and 12 July 2010, respectively, all of which
         invitations he declined. The fact that an invitation to attend a hearing has been declined may be considered to be an exceptional
         circumstance justifying the adoption of a suspension decision without the interested person having been heard. Accordingly,
         it has been held that where the administration must hear a person before adopting a decision, it is not required to postpone
         that hearing indefinitely until the person concerned is able to attend (see, to that effect and by analogy, judgment of 5
         December 2002 in Case T‑277/01 Stevens v Commission, paragraph 41). It is true that, in the present case, on the dates when the administration made those invitations, the decision
         of 6 April 2010 had not been revoked, but in the absence of a rule requiring the administration to revoke a decision before
         commencing a new procedure to replace it, the applicant could not refuse, in breach of the duty to cooperate in good faith
         that binds all members of staff in the service of the European Union with regard to its administration (see, to that effect,
         judgment of 16 March 2004 in Case T‑11/03 Afari v ECB, paragraph 192) to take part in the hearing organised by the ECB. 
      
      91      It follows that the ECB, when it adopted the decision of 4 August 2010, did not infringe Article 43 of the conditions of employment
         nor, therefore, the rights of the defence according to which any person against whom proceedings have been initiated which
         are liable to culminate in a measure adversely affecting that person, must be given the opportunity to put their case properly.
         
      
      92      The applicant’s allegation that the ECB adopted the decision of 4 August 2010 in such a manner as to ensure that he would
         remain, in any event, suspended from his duties, which demonstrates that the administration did not want him to be able to
         return to his post, must also be rejected. Until such time as the decision to suspend a member of staff has been annulled
         by the European Union Courts, the administration has no obligation to reinstate him. It follows that, unless the applicant
         establishes an abuse of process, a question that will be examined in the context of the third plea, the administration cannot
         be accused of illegality on the basis that it acted in such a way that the applicant remained suspended from his duties. 
      
      93      The same applies to the applicant’s argument alleging a breach of the presumption of innocence. A breach of the presumption
         of innocence can only be found if there is evidence that demonstrates that the administration had decided, from the beginning
         of a disciplinary procedure, to impose, in any event, a penalty on the person concerned (see, to that effect and by analogy,
         judgment of 9 July 2002 in Case T‑21/01 Zavvos v Commission, paragraph 341). In the present case, it must be emphasised that the possibility offered by Article 43 of the conditions
         of employment to suspend a person is not intended to impose a sanction on that person (see, to that effect, judgment of 18
         October 2001 in Case T‑333/99 X v ECB, paragraph 151), but to allow the administration to adopt a precautionary measure to ensure that that person does not interfere
         with the ongoing inquiry. 
      
      94      Finally, if, by his argument, the applicant intends to claim that the ECB has deprived the second special appeal of all useful
         effect by implementing a new suspension procedure without waiting for the result of that special appeal procedure, it must
         be observed that that procedure seeks to provide the administration with the possibility of reviewing a decision that it has
         adopted, before it is referred to the European Union Courts, in order to remedy any error vitiating it. In the present case,
         as the administration took the initiative to commence a new procedure in order to remedy any defects affecting the decision
         of 6 April 2010, the applicant cannot take issue with the administration for not having awaited the outcome of the second
         special appeal. 
      
      95      In so far as the applicant complained of the excessive length of his suspension and such a claim is admissible, it must be
         noted that, at the same time as the applicant was suspended, an administrative inquiry took place, followed by an OLAF investigation
         which was still pending on the date when the applicant brought the second appeal before the Tribunal. Therefore, the applicant
         cannot criticise the ECB for having suspended him for an excessive period since, as noted above, the aim of a suspension measure
         is to ensure that the person concerned will not interfere with an ongoing inquiry. 
      
      96      It follows from all of the foregoing that the first part of the first plea must be rejected. 
      
       The second part of the first plea
      –       Arguments of the parties
      97      The applicant claims that the adoption of the decision of 4 August 2010, and then of the decision of 23 November 2010 taken
         after reconsideration, breached his rights of defence as well as Article 41 of the Charter, as he was not allowed access to
         the inquiry file. In that regard, he states that his request of 23 June 2010 seeking access to a series of documents, including
         the decision to carry out an administrative inquiry of 26 February 2010 and the inquiry status report of 6 August 2010, communicated
         to the Executive Board on that date, was rejected. He also states that the ECB never followed up the request that he had made
         to the panel to forward a certain number of documents to him. When he subsequently made another request for access to documents,
         on 26 August 2010, to the Director-General of the DG HR and to the HR expert, emphasising that such access was necessary to
         enable him to exercise his rights of defence effectively, he was again refused, or partially refused, access to certain documents.
         He later repeated that request but it was systematically refused. 
      
      98      In its defence, the ECB contends, in essence, that that plea is ineffective, since a breach of the rights of the defence can
         only be assessed with regard to the decision taken at the end of the disciplinary procedure. Furthermore, as the ECB was not
         obliged to state the reasons that required the immediate suspension of the applicant, the fact that the applicant did or did
         not have access to his file cannot have had any effect on the decision of 23 November 2010 taken after reconsideration. In
         any event, the ECB contends that the applicant had access to all of the documents that relate to the allegations made against
         him.
      
      –       Findings of the Tribunal
      99      It is apparent from the file that, neither at the time when the decision of 4 August 2010 was taken, nor when the decision
         of 23 November 2010 taken after reconsideration was adopted, was the applicant able to have access to eight documents relating
         to the inquiry and regarding which he had made a request. 
      
      100    In that regard, it must be noted that Article 41(2)(b) of the Charter provides that every person has a right to have access
         to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy.
         However, in the present case, and independently of the question whether a plea alleging a breach of Article 41(2)(b) of the
         Charter is effective when challenging the legality of a decision other than a refusal of access to the personal file, the
         Tribunal finds that the Executive Board did not breach Article 41(2)(b) of the Charter by refusing the applicant access to
         the eight abovementioned documents. 
      
      101    According to Article 43 of the conditions of employment, to suspend a member of staff it suffices that ‘allegations of serious
         breach of professional duties’ have been made against him. It is true that, having regard to the provisions of Article 41(2)(b)
         of the Charter, a member of staff is entitled to have access to information held by the ECB that enables him to understand
         the substance of those allegations, so that he can demonstrate, inter alia, that the conduct referred to does not fall within
         the scope of his responsibility, that it is not sufficiently serious to justify a suspension decision, that it is not sufficiently
         probable or that the allegations are manifestly unfounded, so that the suspension of the member of staff in question is unlawful.
         Moreover, such an interpretation of Article 43 of the conditions of employment is also consistent with the principle of the
         presumption of innocence enshrined, with regard to accused persons, in Article 48(1) of the Charter.
      
      102    However, the Tribunal notes that under Article 41(2)(b) of the Charter, the right of every person to have access to his or
         her file can only be exercised ‘while respecting the legitimate interests of confidentiality and of professional and business
         secrecy’. The legitimate interests which justify confidentiality include the need to protect the effectiveness of investigations.
         As has already been held, the effectiveness of an investigation may be diminished if access to all the documents connected
         with it could be given to the persons concerned while it is still ongoing (judgments of 12 September 2007 in Case T‑259/03
         Nikolaou v Commission, paragraph 242, and in Case T‑48/05 Franchet and Byk v Commission, paragraph 255).
      
      103    In the present case, it should be noted that on 26 July 2010, OLAF opened an investigation, which took over the administrative
         inquiry initiated by the ECB and that, consequently, the file documents of the administrative inquiry carried out by the ECB
         must be considered to belong to the file of the OLAF investigation. On the dates when the decision of 4 August 2010 and the
         decision of 23 November 2010 taken after reconsideration were adopted, OLAF had not completed its investigations. Having regard
         to the fact that to provide the applicant with the documents from his file before those decisions were adopted could have
         undermined the effectiveness of the OLAF investigation, the administration could legitimately consider that it was appropriate
         to maintain the confidentiality of certain documents relating to the investigation. Therefore, the administration did not
         breach Article 41(2)(b) of the Charter, nor the applicant’s rights of defence, when it refused him access to eight documents
         relating to the investigation before the adoption of the decision of 4 August 2010 and of the decision of 23 November 2010
         taken after reconsideration.
      
      104    That approach is not called into question by Article 7(3) of Circular No 1/2006, according to which ECB employees who are
         the subject of an administrative inquiry must be granted access to documents related to the allegations made against them
         which disclose facts important for the exercise of their rights of defence, since that provision does not state that such
         access must be granted before the adoption of any suspension measure, but only before the person or panel conducting that
         inquiry submits the reasoned report referred to in Article 6(14) of that circular.
      
      105    In so far as the applicant submits, more specifically, that the documents which the administration did not supply to him included
         those expressly referred to in the decision of 4 August 2010, namely the investigation status report dated 6 April 2010 and
         the investigation status report dated 19 July 2010, it should be noted that whereas the administration has an obligation to
         provide the person concerned with the documents on which it expressly relies to adopt a decision that adversely affects him,
         the failure to disclose those documents may only result in the annulment of the decision in question if the charges against
         him can be proved only by reference to those documents (judgment of 7 January 2004 in Joined Cases C‑204/00 P, C‑205/00 P,
         C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others v Commission, paragraphs 73 to 75; judgment of 3 July 2001 in Joined Cases T‑24/98 and T‑241/99 E v Commission, paragraph 92). In the present case, Article 43 of the conditions of employment, which provides the basis for the ECB’s power
         to adopt a suspension measure, makes the application of that provision conditional only on the existence, with regard to the
         member of staff concerned, of allegations of a serious breach of his professional duties that, according to the case-law,
         must be sufficiently probable (judgment of 30 November 2009 in Case F‑80/08, Wenig v Commission, paragraph 67). Given that the decision of 4 August 2010 and the decision of 23 November 2010 taken after reconsideration,
         are based on the allegations that the applicant had authorised or permitted, in his capacity as Head of the Administrative
         Services Division, the purchase of items of dubious professional usefulness, the whereabouts of which could not be clearly
         established, and that those allegations appeared in some of the documents that were communicated to the applicant, such as
         the one entitled ‘Draft summary of the hearing of [the applicant]’, mentioned in paragraph 38 of this judgment, or the draft
         minutes of the interview of the applicant of 26 March 2010, mentioned in paragraph 18 of this judgment, the applicant cannot
         claim that the administration did not communicate to him the documents summarising the progress of the investigation on 6
         April 2010 and 19 July 2010 respectively.
      
      106    It follows from the foregoing that the second part of the first plea must be rejected. 
      
       The third part of the first plea 
      –       Arguments of the parties
      107    The applicant claims that as the allegations made against him served as the basis of the decision of 4 August 2010, according
         to the letter of 17 August 2010, mentioned at paragraph 45 of this judgment, they were not communicated to him in good time,
         that is to say, prior to the adoption of the decision of 4 August 2010. 
      
      108    The applicant states that, according to the letter of 17 August 2010, allegations of three types were taken into account.
         
      
      109    The first are the allegations appearing in the investigation status report dated 6 April 2010 which, in essence, concerned
         the purchase of brand X laptop computers, other laptop computers and E-book readers by the Administrative Services Division
         and the fact that the professional reasons for the purchase and use of those items and their whereabouts were uncertain. Whereas
         the letter of 17 August 2010 indicates that the applicant had an interview with the panel conducting that inquiry with regard
         to those allegations, the applicant claims that the information that was given to him on that occasion was not exactly the
         same as that given in the letter. During that interview, he was only informed that the inquiry was intended to clarify all
         of the facts and circumstances relating to the purchase of certain items and to the use of certain items belonging to the
         ECB by staff members of the Administrative Services Division and to investigate potential breaches of professional duties
         by SCB staff in relation to those purchases or that use. 
      
      110    Second, the letter of 17 August 2010 mentions allegations that were summarised and substantiated in the document entitled
         ‘Draft summary of the hearing of [the applicant]’. However, the applicant asserts that the allegations contained in that document
         cannot be considered to have been validly communicated to him, as that document has no legal effect since no hearing took
         place on 14 July 2010.
      
      111    Third, the letter of 17 August 2010 refers to allegations appearing in the investigation status report dated 19 July 2010
         as having been communicated to the applicant on 29 June 2010. However, according to the applicant, those allegations are not
         valid since, on the one hand, he was not invited to submit his observations on them and, on the other, they originate from
         the panel conducting the administrative inquiry, whereas such an inquiry should be a neutral exercise in establishing the
         facts. 
      
      112    In its defence, the ECB states that the alleged facts that justified the adoption of the decision of 4 August 2010 were, first,
         that the applicant had initiated, authorised or permitted, in his capacity as Head of the Administrative Services Division,
         the purchase of brand X laptop computers, other types of laptop and desktop computers and E‑book readers; secondly, that the
         business reasons underlying those purchases were inconsistent with the role and responsibilities of the Administrative Services
         Division as outlined in the Functions Paper; thirdly, that the applicant, as Head of the Administrative Services Division
         could not give a reasonable explanation of the whereabouts of the majority of those items. The ECB contends that the applicant
         was informed of those allegations before the adoption of the decision of 4 August 2010, first, during the meeting of 26 March
         2010, by the panel, then by letter of 24 June 2010 inviting him to the hearing of 14 July 2010 and, finally, by letter of
         21 July 2010 providing the applicant with the document entitled ‘Draft summary of the hearing of [the applicant]’. According
         to the ECB, the applicant acknowledged that he was aware of those allegations in his observations on the abovementioned draft
         summary. 
      
      –       Findings of the Tribunal
      113    It should be noted that, whereas the letter of 17 August 2010, mentioned in paragraph 45 of this judgment, refers to the allegations
         contained in the investigation status report dated 6 April 2010, to the document entitled ‘Draft summary of the hearing of
         [the applicant]’, and to the investigation status report dated 19 July 2010 in order to identify the allegations made against
         the applicant which served as the basis for the decision of 4 August 2010, it is apparent from that letter that those allegations
         relate, in essence, to the fact that items such as laptop computers and E-book readers were purchased by the Administrative
         Services Division at the initiative or with the consent of the applicant, who was responsible for that division, without clearly
         established reasons and even though their professional use does not seem to correspond to the tasks undertaken by that division,
         and that those items could not be located. It must be noted that those allegations already appeared in the document entitled
         ‘Draft summary of the hearing of [the applicant]’. Consequently, the applicant has no grounds to claim that the allegations
         made against him, that served as the basis for the decision of 4 August 2010, were not communicated to him in due time. 
      
      114    That finding is not called into question by the fact that that document was erroneously entitled ‘Draft summary of the hearing
         of [the applicant]’ whereas no hearing took place, or by the contention, if regarded as established, that the allegations
         made against the applicant in the investigation status reports dated 6 April and 19 July 2010, and in the document entitled
         ‘Draft summary of the hearing of [the applicant]’ had altered slightly, so that it was necessary for those three documents
         to be communicated to him. First, the name of a document has no effect on the fact that it was brought to the attention of
         the applicant. Secondly, the allegations made against the applicant in the two abovementioned investigation status reports
         were taken up again, in essence, in the document entitled ‘Draft summary of the hearing of [the applicant]’, which was communicated
         to the applicant.
      
      115    It follows from the above that the third part of the first plea must be rejected and, with it, the first plea in its entirety.
      
       Infringement of Article 43 of the conditions of employment, manifest error of assessment and breach of the obligation to state
            reasons 
       Arguments of the parties
      116    The applicant states that under the terms of Article 43 of the conditions of employment, a suspension measure must be based
         on ‘allegations of serious breach of professional duties’. The decision of 4 August 2010 and the decision of 23 November 2010
         taken after reconsideration, it is argued, do not identify the allegations of serious breach of professional duties that could
         justify the suspension of the applicant, nor do they explain the reason why the Executive Board could not grant him a hearing
         before adopting those decisions, but are worded in general terms, with the use of generic phrases such as ‘the need to facilitate
         the proper conduct of the internal administrative inquiry’ or ‘the interests of the service’. 
      
      117    Furthermore, the applicant alleges that the ECB breached the obligation to state reasons, as it did not inform him of the
         allegations on which the Executive Board relied to suspend him, when it sent the decision of 23 November 2010 taken after
         reconsideration, but only after he had been notified of this.
      
      118    Moreover, the applicant states that the justifications put forward for his suspension clearly changed between, first, the
         decision of 6 April 2010, based on the unrest caused in the Administrative Services Division and the need to facilitate the
         proper conduct of the administrative inquiry, secondly, the decision of 4 August 2010, which is based, on the one hand, on
         the fact that the allegations made against him, if established, would constitute a serious breach of his professional duties
         that could, moreover, cause major damage to the reputation of the ECB and, on the other hand, on the senior position he held
         within the ECB, thirdly, the decision of 23 November 2010 rejecting the second special appeal, which is based on the need
         to ensure the proper conduct of the OLAF investigation and, fourthly, the decision of 23 November 2010 taken after reconsideration.
         
      
      119    Finally, the applicant claims that none of the evidence put forward on the occasion of the successive suspension decisions
         justified that measure. 
      
      120    First, the reference to general wording, such as the need to facilitate the proper conduct of the internal administrative
         inquiry or the interests of the service, is not a valid justification. 
      
      121    Second, the so-called unrest caused in the Administrative Services Division mentioned in the suspension decision of 6 April
         2010 is not attributable to the applicant, but is due to the use of an aggressive tone by the panel conducting the inquiry
         during the interviews that it had with the staff. 
      
      122    Third, the existence of allegations of serious breach of duties is not sufficient to justify a suspension measure: there has
         to be evidence demonstrating that the truth of those allegations is sufficiently probable, which is not the case here. 
      
      123    Fourth, contrary to what is indicated in the decision of 4 August 2010, the allegations in question could not cause damage
         to the reputation of the ECB, as no publicity had been given to the alleged facts. 
      
      124    Fifth, the need to facilitate the proper conduct of the administrative inquiry could not be invoked by the ECB, as it allowed
         a period of more than one month to pass, from the date of the opening of the administrative inquiry, before envisaging the
         suspension of the applicant. Furthermore, the mere existence of an inquiry could not suffice to justify the adoption of a
         suspension measure, since any member of staff can be reassigned rather than suspended. In the specific case of the applicant,
         moreover, the proper conduct of the inquiry would not have been affected if he had remained in his post. As the administrative
         inquiry was carried out confidentially, the applicant could not know the names of the members of staff who were interviewed.
         
      
      125    Sixth, the applicant considers that the risk that he would impede the OLAF investigation cannot have been the reason for his
         suspension since he was only informed of the existence of that investigation subsequently, on 16 August 2010. Furthermore,
         the existence of that investigation could not justify the suspension measure, as there was no evidence to establish that OLAF
         considered it necessary to suspend the applicant. According to him, once OLAF opens an investigation, the ECB relinquishes
         the case, so that it is for OLAF to decide if the person concerned by the investigation should be suspended. 
      
      126    Seventh, the fact that the applicant occupies a high-ranking position within the institution has no effect on the adoption
         of a suspension measure. 
      
      127    Eighth, the elements of the panel’s report, cited in support of the decision of 23 November 2010 taken after reconsideration,
         are not relevant, as the purpose of an administrative inquiry is to discover whether the accusations made are founded and
         not whether it is appropriate to adopt a suspension measure. 
      
      128    Ninth and finally, a suspension measure could not be justified by the fact that the applicant did not respond correctly with
         regard to the 127 items identified in the course of the inquiry and in respect of which he was accused of having seriously
         breached his professional duties, given that he did not have any access to the file, that some of those items had a low value
         and had been purchased several years previously and, finally, that his responses had been useful and detailed.
      
      129    In its defence, the ECB considers that the justifications put forward are not vague and even if they were, that is of no consequence
         since it need only make a finding of the existence of allegations of serious fault by the applicant in order to be entitled
         to suspend him. In any event, the ECB notes that the decision of 23 November 2010 taken after reconsideration was made in
         a context known to the applicant which allowed him to understand its scope. For that reason, the ECB contends that the reasoning
         of the decision of 23 November 2010 taken after reconsideration could not have been communicated to the applicant too late.
         Finally, with regard to the fact that the grounds for the suspension of the applicant changed, the ECB contends that that
         does not constitute an illegality. As the legality of an individual act must be assessed in accordance with the factual circumstances
         on the date when the act was adopted, it was permissible for the ECB to refer to new facts that had arisen since the adoption
         of the decision of 4 August 2010 as a basis for the decision of 23 November 2010 taken after reconsideration. 
      
      130    With regard to the grounds of the decision, the ECB notes that the contested decision is that of 23 November 2010 taken after
         reconsideration. The grounds of that decision related to the existence of factual allegations that could constitute, if proven,
         a serious breach by the applicant of his professional duties, and to the fact that the applicant was unable to justify some
         of the purchases made by the division that he was responsible for or to indicate the whereabouts of the items thus purchased.
      
       Findings of the Tribunal
      131    First, it should be pointed out that the obligation to state reasons implies that the addressee of any decision adversely
         affecting him should be enabled to understand, clearly and unequivocally, the reasoning of the administration. Thus the administration
         is required, in the light of the circumstances of the case, to provide the person concerned with information which is specific
         to his case, and may not merely state general considerations or simply refer to the regularity of the procedure followed.
         In any event, merely formal clauses or abstract statements which have no direct link with the details of the case do not constitute
         an adequate statement of reasons (judgment of 1 March 2005 in Case T‑143/03 Smit v Europol, paragraph 38). 
      
      132    Furthermore, it must be pointed out that the statement of reasons must, in principle, be notified to the person concerned
         at the same time as the decision adversely affecting him (judgment of 26 November 1981 in Case 195/80 Michel v Parliament, paragraph 22). However, a statement of reasons for a decision is adequate if the decision was taken in a context which is
         known to the official concerned and which enables him to understand the scope of the measure which has been adopted in regard
         to him (see, in particular, judgment of 23 November 2010 in Case F-8/10, Gheysens v Council, paragraph 63).
      
      133    In the present case, in relation, first, to the submission that the decision of 4 August 2010 and the decision of 23 November
         2010 taken after reconsideration did not specify how the allegations made against the applicant were such as to justify his
         suspension, it should be noted that, in order to adopt that decision of 23 November 2010, the Executive Board relied, in essence,
         on the allegations that justified the suspension of the applicant on 4 August 2010, consisting of the criticism of the applicant
         for having authorised or permitted, in his capacity as head of the Administrative Services Division, the purchase of items
         of dubious professional usefulness, having regard, in particular, to the tasks carried out by that division, items whose whereabouts
         could not be clearly established by the applicant. Such facts, if they were established, would be capable of demonstrating
         that the applicant had misappropriated or participated in the misappropriation of ECB assets, and would undeniably constitute,
         on the part of the applicant, a serious breach of his professional obligations. As those allegations were brought to the attention
         of the applicant in the document entitled ‘Draft summary of the hearing of [the applicant]’, which the applicant stated he
         had received on 21 July 2010 (see paragraph 39 of the present judgment), and by letter of 17 August 2010, the applicant has
         no grounds to assert that the reasoning of the decision of 23 November 2010 taken after reconsideration did not enable him
         to understand how the allegations made against him were of such a nature as to justify his suspension.
      
      134    Secondly, the applicant’s submission that the reasoning of the decision of 4 August 2010 and the decision of 23 November 2010
         taken after reconsideration had been communicated to him too late, as he had not received notification at the same time of
         the allegations upon which the Executive Board had relied in order to adopt those two decisions, has no basis in fact. As
         noted in the previous paragraph, the decision of 23 November 2010 taken after reconsideration clearly states that it was adopted
         on the basis of the same allegations as those that served as the basis for the decision of 4 August 2010. Those allegations
         were communicated to the applicant in the document entitled ‘Draft summary of the hearing of [the applicant]’, regarding which
         the applicant submitted his observations by letters of 3 and 10 September 2010. Consequently, the applicant cannot claim that
         the decision of 4 August 2010 and that of 23 November 2010 taken after reconsideration did not state reasons on the basis
         that he had not been informed of the allegations on which the Executive Board relied to suspend him.
      
      135    With regard to the applicant’s submission that the justifications put forward for his suspension clearly altered between the
         decision of 6 April 2010, that of 4 August 2010 and that of 23 November 2010 taken after reconsideration, it must be emphasised
         that, contrary to what is suggested in the appellant’s argument, those various decisions do not form a single act for which
         the grounds have altered, but a succession of independent decisions. Therefore, the fact that the grounds put forward by the
         administration to justify the suspension of the applicant have not remained strictly identical between the decision of 6 April
         2010, that of 4 August 2010 and that of 23 November 2010 taken after reconsideration, has no effect on the legality of the
         decision of 4 August 2010 and the decision of 23 November 2010 taken after reconsideration. 
      
      136    In any event, it should also be noted that the administration can replace or add grounds to a decision until such time as
         an action is brought against it (see, to that effect, judgment of 15 December 2010 in Case F‑67/09 Angulo Sánchez v Council, paragraph 71).
      
      137    Finally, with regard to the applicant’s submission that none of the evidence put forward as a basis for his suspension justified
         the adoption of that measure, it must be noted that although Article 43 of the conditions of employment make the application
         of that provision subject only to the existence, on the part of the member of staff concerned, of allegations of a serious
         breach of his professional obligations, it has been held in case-law that it was nevertheless necessary, in order to suspend
         a member of staff, that the conduct alleged against him be sufficiently probable (see, to that effect, Wenig v Commission, paragraph 67).
      
      138    In the present case, it should be observed that both the decision of 4 August 2010 and that of 23 November 2010 taken after
         reconsideration are based on the allegations that the applicant had authorised or permitted, in his capacity as head of the
         Administrative Services Division, the contested purchase of items whose whereabouts could not be clearly established. It is
         apparent from the documents in the file and, in particular, the draft minutes of the interview of the applicant of 26 March
         2010, that the conduct alleged against him was sufficiently probable to justify his suspension. 
      
      139    As the existence of allegations of a sufficiently probable serious breach by the applicant of his professional duties constitutes
         grounds justifying, with regard to the provisions of Article 43 of the conditions of employment, the application of that provision,
         there is no need to consider the arguments of the applicant presented at paragraphs 120 to 128 of the present judgment, as
         those arguments must be deemed, in this context, as being directed against grounds included in the decision of 4 August 2010
         and the decision of 23 November 2010 taken after reconsideration purely for the sake of completeness and whose possible irregularity
         cannot, therefore, result in the annulment of that decision (Case T‑406/04 Bonnet v Court of Justice [2006] ECR‑SC I‑A‑2‑213 and II‑A‑2‑1097, paragraph 104).
      
      140    That finding is not affected by the argument that the elements of the panel’s report cited in support of the decision of 23
         November 2010 taken after reconsideration are not relevant, as the purpose of an inquiry is to discover whether the accusations
         made against a staff member are substantiated and not whether it is appropriate to adopt a suspension measure, since, contrary
         to what the applicant claims, the Executive Board did not merely find that the panel was favourable to his suspension, a finding
         which, moreover, is not apparent from the file, but relied on the comments made by the panel regarding the observations of
         the applicant in relation to the allegations made against him. 
      
      141    It follows that as none of the submissions relied on by the applicant in the context of the second plea is well founded, it
         must be rejected.
      
       Breach of the duty to have regard to the interests of officials, breach of the principle of proportionality, and misuse of
            powers and abuse of process 
       Arguments of the parties
      142    First, the applicant claims that the suspension measure is not proportionate to the alleged facts. The fact that he occupied
         a senior position within the institution and that OLAF carried out an investigation did not justify the adoption of a suspension
         measure, which has had a particularly negative impact on his career. In any event, the applicant claims that the administration
         should have considered the possibility of adopting a measure other than his suspension, such as reassignment to another unit.
         
      
      143    Secondly, the applicant claims that the ECB breached its duty to have regard to the interests of officials, as it did not
         take account of his situation and, in particular, of the fact that his reputation would be damaged as a result of his suspension.
         
      
      144    Thirdly, the applicant claims that the decision of 4 August 2010 and the decision of 23 November 2010 taken after reconsideration
         are vitiated by a misuse of powers and abuse of process, as the ECB intended to suspend him regardless of the accuracy of
         the facts alleged against him. 
      
      145    In its defence, with regard to the duty to have regard to the interests of officials, the ECB claims that the requirements
         of the duty to have regard to the interests of officials cannot be interpreted as preventing the administration adopting a
         suspension measure. Moreover, the ECB contends that the inquiry constituted a measure taken in the interests of the applicant,
         as it sought to verify whether the allegations made against him were substantiated. Furthermore, the ECB states that, in order
         to limit any damage to the applicant’s reputation, it took pains to ensure that the allegations made against him were not
         made public, beyond what was strictly necessary. However, the ECB cannot see what other measure it could reasonably have taken
         in order to protect the reputation of the applicant without contravening its obligation to combat fraud and other illegal
         activities detrimental to the financial interests of the European Union.
      
      146    With regard to the principle of proportionality, the ECB states that it enjoys broad discretion with regard to its organisation.
         Therefore, it contends that it was entitled to consider, given the seriousness of the allegations in question, that it did
         not have to reassign the applicant to another service where, moreover, he could have further undermined the institution if
         those allegations proved to be founded.
      
      147    Finally, with regard to the alleged abuse of process and misuse of powers, the ECB suggests that that argument is inadmissible,
         as it was not raised on the occasion of the special appeal. On the merits, it contends that there is nothing to suggest that
         it acted maliciously or even simply for reasons other than in the interests of the service.
      
       Findings of the Tribunal
      148    With regard, first, to whether the suspension measure was not proportionate to the alleged facts, it should be noted that
         the allegations made against the applicant, which are referred to in paragraph 138 of this judgment, are particularly serious
         as they concern facts which, if proven, could demonstrate that the applicant had misappropriated or participated in the misappropriation
         of items purchased by the Administrative Services division. In those circumstances, and having regard to the fact that the
         applicant occupied a head of division position, his suspension to prevent him from interfering with the inquiries carried
         out, first by the panel and then by OLAF, does not seem to be a disproportionate measure. 
      
      149    With regard to the argument that the ECB had failed to consider whether solutions other than suspension could have guaranteed
         the proper conduct of the internal inquiry and then of the OLAF investigation, it suffices to note, in order to refute that
         argument, that, having regard to the broad discretion enjoyed by the ECB to adopt a suspension measure under the terms of
         Article 43 of the employment conditions, where a member of staff is the subject of allegations of a sufficiently probable
         serious breach of his duties, it is not for the Tribunal to determine whether other measures would have been more appropriate.
      
      150    With regard, secondly, to the submission that, by failing to take account of the situation of the applicant, the ECB has breached
         its duty to have regard to the interests of officials it should be noted that, whereas the duty of the administration to have
         regard to the interests of its members of staff reflects a balance between reciprocal rights and obligations created by the
         provisions applicable to ECB staff for relations between the public authority and public service employees, the requirements
         of that duty cannot prevent the administration from adopting the suspension measures it believes necessary (see, to that effect,
         Wenig v Commission, paragraph 78). Consequently, the applicant is not justified in relying on the duty have regard to the interests of officials
         to contest the decisions to suspend him. 
      
      151    In relation, thirdly, to the submission that the decision of 4 August 2010 and the decision of 23 November 2010 taken after
         reconsideration are vitiated by a misuse of powers and abuse of process on the ground that the ECB intended to suspend him
         regardless of the accuracy of the facts alleged against him, it should be noted that, where the reason provided to justify
         a decision has not been found to be incapable of serving as a basis for that decision, there can be no question of any misuse
         of powers (see, to that effect, judgment of 14 July 1983 in Case 176/82 Nebe v Commission, paragraph 25; judgment of 17 November 1998 in Case T‑131/97 Gómez de Enterría y Sanchez v Parliament, paragraph 62). Given that, in the present case, the applicant was the subject of allegations of a sufficiently probable
         serious breach of his duties, the ECB cannot be held to have misused its powers. 
      
      152    Since none of the submissions relied on by the applicant in support of the third plea is well founded, that plea must be dismissed.
         
      
      153    Consequently, all the claims for annulment must be rejected. 
      
      3.     The claim for compensation 
       Arguments of the parties
      154    The applicant claims to have suffered significant non-material damage as a result of the adoption of the decision of 4 August
         2010 and the decision of 23 November 2010 taken after reconsideration, which he quantifies in the amount of EUR 20 000 per
         decision. He bases this claim for compensation on the fact that, first, his honour and his professional reputation have been
         damaged as a result of his suspension; secondly, that he has been persecuted by his employer; and finally, that his current
         medical condition, that is, his incapacity for work, is the consequence of the decision-making behaviour of the ECB.
      
      155    In its defence, the ECB contends that the claim for compensation should be rejected as the decision of 23 November 2010 taken
         after reconsideration is not vitiated by illegality. In any event, it contends that it has endeavoured not to damage the good
         reputation of the applicant, as demonstrated by the fact that the allegations made against him were not the subject of any
         publicity beyond what was strictly necessary. The applicant’s claim that he has been the victim of persecution is contradicted
         by his refusal to take part in the hearings and by the fact he could have put forward his argument by submitting his written
         observations. Finally, the ECB states that the applicant does not provide any evidence regarding the existence of a connection
         between his state of health and the behaviour of the administration and affirms that it continued to pay his salary until
         March 2011, the date from which he received a temporary invalidity allowance.
      
       Findings of the Tribunal
      156    It should be pointed out that, where the loss that an applicant alleges is caused by the adoption of decisions that are the
         subject of a claim for annulment, the rejection of that claim for annulment entails the rejection of the compensation claim,
         as they are closely linked. 
      
      157    In the present case, it should be noted that the non-material damage that the applicant claims is caused by the decision-making
         behaviour of the ECB and that the claims for annulment were rejected. 
      
      158    By way of exception, where the claim for annulment has been rejected, a compensation claim that is closely linked to it may
         nevertheless succeed if the alleged loss is caused by an illegality of the contested decision which, although not capable
         of serving as the basis for annulment of that decision, has caused damage to the applicant (see, to that effect, with regard
         to failure to comply with a time-limit, judgment of 11 April 2006 in Case T‑394/03 Angeletti v Commission, paragraph 164).
      
      159    However, in the present case, whereas the applicant has requested compensation for the non-material damage that he allegedly
         suffered, even in the event of annulment of the decision of 23 November 2010 taken after reconsideration, the Tribunal has
         found no irregularity in the decision-making behaviour of the ECB.
      
      160    Consequently, the claim seeking compensation for the applicant for non-material damage that he allegedly suffered as a result
         of the adoption of the decision of 4 August 2010 and the decision of 23 November 2010 taken after reconsideration must be
         rejected.
      
      161    It follows from all the foregoing that the actions registered as Cases F‑7/11 and F‑60/11 must be dismissed in their entirety.
      
       Costs
      162    Under Article 87(1) of the Rules of Procedure, without prejudice to the other provisions of Chapter 8 of Title 2 of those
         rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
         Under Article 87(2), the Tribunal may, if equity so requires, decide that an unsuccessful party is to pay only part of the
         costs or even that he or she is not to be ordered to pay any. 
      
      163    In the present case, the applicant claims that, in view of its attitude, the ECB should be ordered to pay the costs, even
         if the action is dismissed, on the ground that it refused to take into consideration the observations of the applicant regarding
         the need to annul the decision of 6 April 2010 before preparing, where appropriate, a new decision. In any event, the applicant
         states that he should not pay the fees of the ECB lawyer because the ECB, instead of being represented by its legal service,
         uses lawyers in order to dissuade its staff from bringing actions. 
      
      164    However, the Tribunal finds that no consideration of equity justifies the application of Article 87(2) of the Rules of Procedure.
         First, the fact that the ECB refused to take into account the observations of the applicant regarding the need to annul the
         decision of 6 April 2010 before initiating a procedure to adopt a new decision, if considered to be established, is a consideration
         relating to the legality of the suspension measure and not to equity, so that the applicant should have relied on it in order
         to obtain a favourable decision and consequently an order for the ECB to pay the costs under Article 87(1) of the Rules of
         Procedure. For the sake of completeness, it must be pointed out that that argument concerns the legality of the decision of
         4 August 2010, which was replaced. Secondly, to accept that the applicant should not pay the fees and expenses of the ECB’s
         lawyer on the ground that it could have been represented by its legal service, would have had the effect of reducing the effectiveness
         for the ECB of Article 19 of the Statute of the Court of Justice of the European Union according to which the institutions
         – a term that must be understood as referring, more broadly, to the other organs and bodies of the European Union (see, to
         that effect, order of 27 September 2011 in Case F‑55/08 DEP De Nicola v EIB, paragraph 26) – can be represented by an adviser or a lawyer. In any event, it must be noted that such an argument relates
         to whether the costs incurred by the ECB were essential, an issue which may, if appropriate, be raised during a taxation of
         costs procedure, but which is not relevant to the question whether an unsuccessful party must be ordered to pay all or some
         of the costs.
      
      165    It follows from the reasoning set out above that the applicant has failed in his action. Furthermore, in its pleadings the
         ECB has expressly requested that the applicant be ordered to pay the costs. As the circumstances of the present case do not
         justify the application of the provisions of Article 87(2) of the Rules of Procedure, the applicant must bear his own costs
         and pay the costs incurred by the ECB.
      
      On those grounds,
      THE CIVIL SERVICE TRIBUNAL (Second Chamber)
      hereby:
      1.      Dismisses the actions in Cases F‑7/11 and F‑60/11.
      2.      Declares that AX must bear his own costs and orders him to pay the costs incurred by the European Central Bank.
      
               Rofes i Pujol 
            
            
                Boruta 
            
            
                Bradley
            
         Delivered in open court in Luxembourg on 13 December 2012.
      
               W. Hakenberg 
            
             
            
                     M. I. Rofes i Pujol
            
         
               Registrar 
            
             
            
                     President
            
         * Language of the case: English.