1 By his appeal, DI seeks annulment of the judgment of the General Court of the European Union of 9 June 2021, DI v ECB (T‑514/19, EU:T:2021:332) (‘the judgment under appeal’), by which the latter dismissed his action based on Article 270 TFEU and Article 50a of the Statute of the Court of Justice of the European Union and seeking, first, annulment of the decision of the European Central Bank (ECB) of 7 May 2019 dismissing him without notice on disciplinary grounds (‘the contested dismissal decision’) and the ECB decision of 25 June 2019 refusing to reopen the procedure (taken together with the contested dismissal decision, ‘the contested decisions’), secondly, that his reinstatement be ordered with effect from 11 May 2019 and, thirdly, compensation for the non-material damage he allegedly suffered as a result of those decisions and the duration of the disciplinary procedure.
2 Article 12.3 of the Protocol (No 4) on the Statute of the European System of Central Banks and of the European Central Bank (OJ 2016 C 202, p. 230), annexed to the Treaty on European Union and the FEU Treaty (‘the Statute of the ESCB’), provides: ‘The Governing Council shall adopt Rules of Procedure which determine the internal organisation of the ECB and its decision-making bodies.’
3 According to Article 36.1 of that statute: ‘The Governing Council, on a proposal from the Executive Board, shall lay down the conditions of employment of the staff of the ECB.’
4 On the basis of Article 12.3 of the Statute of the ESCB, the Governing Council adopted the Rules of Procedure of the European Central Bank, as amended on 22 April 1999 (OJ 1999 L 125, p. 34) (‘the Rules of Procedure’). Under the heading ‘Conditions of Employment’, Article 21 of those rules states: ‘21.1. The employment relationship between the ECB and its staff shall be determined by the Conditions of Employment and the Staff Rules. 21.2. The Conditions of Employment shall be approved and amended by the Governing Council upon a proposal from the Executive Board. The General Council shall be consulted under the procedure laid down in these Rules of Procedure. 21.3. The Conditions of Employment shall be implemented by Staff Rules, which shall be adopted and amended by the Executive Board. 21.4. The Staff Committee shall be consulted before the adoption of new Conditions of Employment or Staff Rules. Its opinion shall be submitted, respectively, to the Governing Council or the Executive Board.’
5 On the basis of Article 36.1 of the Statute of the ESCB, the Governing Council adopted the Decision of 9 June 1998 on the adoption of the Conditions of Employment for Staff of the European Central Bank as amended on 31 March 1999 (OJ 1999 L 125, p. 32) (‘the Conditions of Employment’).
6 According to Article 9(a) of those Conditions of Employment: ‘Employment relations between the ECB and its members of staff shall be governed by employment contracts issued in conjunction with these Conditions of Employment. The Staff Rules adopted by the Executive Board shall further specify these Conditions of Employment. …’
7 Article 44 of the Conditions of Employment provides: ‘The following disciplinary measures may be taken, as appropriate, against members of staff or former members of staff to whom these Conditions of Employment apply who, whether intentionally or through their negligence, breach their professional duties: (i) the Director-General [of] Human Resources or their Deputy Director-General (for members of staff in salary bands A to J), or the member of the Executive Board to whom the Directorate-General [of] Human Resources reports (for members of staff in salary bands K to M), may impose any of the following: - a written warning, - a written reprimand; (ii) in addition, the Executive Board may impose any of the following: - … - dismissal with or without notice …; - where a member of staff is in receipt of a retirement pension or disability allowance, withdrawal in whole or in part either temporarily or permanently of entitlement to a retirement pension or disability allowance …’
8 On the basis of Article 21.3 of the Rules of Procedure and Article 9(a) of the Conditions of Employment, the Executive Board of the ECB adopted the European Central Bank Staff Rules (‘the Staff Rules’), Article 8.3.2 of which provides: ‘On the basis of a report, which shall state the facts and the circumstances of the breach of professional duties …, the Executive Board or the Chief Services Officer, acting on behalf of the Executive Board, as the case may be, may decide any of the following: - to initiate disciplinary proceedings for breach of professional duties by the Executive Board, for members of staff above salary band L, and by the Chief Services Officer, acting on behalf of the Executive Board, for members of staff at salary band L or below. Where the Chief Services Officer, acting on behalf of the Executive Board, decides to initiate disciplinary proceedings, the Executive Board shall be informed immediately, … - not to impose a disciplinary measure … If the disciplinary measure likely to be imposed is a written warning or a written reprimand, the Director-General [of] Human Resources or their Deputy (for members of staff in salary bands A to J), or the member of the Executive Board to whom the Directorate-General [of] Human Resources reports (for members of staff in salary bands K or L), may take any of the abovementioned decisions. Disciplinary proceedings shall be initiated at the latest within five years from the date of the facts occurring and within one year from the date on which those facts were discovered, save in cases of serious misconduct for which a dismissal may be imposed, where the time limit shall be respectively 10 years and [1 ]year. …’
9 Article 8.3.7 of those rules provides that ‘the members of the Disciplinary Committee shall act in their personal capacity and shall be completely independent in the performance of their duties’.
10 Article 8.3.17 of those rules provides: ‘The Chief Services Officer, on behalf of the Executive Board, for members of staff at salary band I or below, or the Executive Board, for members of staff above salary band I, shall decide on the most appropriate disciplinary measure …’
11 The background to the dispute was set out in paragraphs 1 to 26 of the judgment under appeal in the following terms: ‘1. The applicant, DI, joined the [ECB] as a member of staff in 1999. He performed the duties of senior IT assistant, classified in salary band D, when he became the subject of disciplinary proceedings concerning claims for reimbursement of, first, physiotherapy invoices, second, receipts for pharmacy expenses and, third, learning support invoices. 2. By several notes dated from 13 December 2013 to 23 November 2015, the company managing the ECB’s health insurance scheme (“Company A”) informed it of two sets of facts. First, the applicant allegedly unlawfully submitted to it physiotherapy invoices for reimbursement, even though those invoices had been provided by B, a beautician, and, second, he allegedly claimed reimbursement of fake receipts for pharmacy expenses. 3. On 14 May 2014, the ECB reported to the Staatsanwaltschaft Frankfurt am Main (Public Prosecutor’s Office, Frankfurt am Main, Germany, “the Public Prosecutor’s Office”) the facts concerning the reimbursement of the physiotherapy invoices. 4. By decision of 21 October 2014, the ECB’s Executive Board decided to suspend the applicant from his functions and to deduct 30% of his basic salary for a maximum period of four months as from November 2014. That decision was based on the information provided by Company A and by the need to safeguard the criminal investigation and the disciplinary follow-up. 5. On 23 January 2015, the ECB sent the Public Prosecutor’s Office the additional information which Company A had provided to it concerning the claims for reimbursement of the pharmacy receipts. 6. After hearing the applicant on 3 February 2016, the Directorate-General (DG) for “Human Resources, Budget and Organisation” of the ECB drew up, on 8 September 2016, a “report on a possible breach of professional duties” …, pursuant to Article 8.3.2 of the ECB Staff Rules … That report found two sets of facts against the applicant. In the first place, from 12 November 2009 to 29 September 2014, the applicant submitted to Company A 86 invoices relating to physiotherapy sessions provided by B to his wife, their children, and himself in the amount of EUR 61490, for which he obtained reimbursement in the amount of EUR 56 041.09, although B is not a physiotherapist but a beautician. In the second place, between February 2009 and September 2013, the applicant also submitted fraudulently to Company A handwritten pharmacy receipts for a total amount of EUR 21 289.08, of which Company A reimbursed EUR 19 427.86. 7. On 12 September 2016, the Public Prosecutor’s Office issued an indictment formally charging the applicant and referring him to the criminal court for fraud within the meaning of Article 263(1) of the Strafgesetzbuch (German Criminal Code) and forgery of documents pursuant to Article 267 of that code for having improperly claimed reimbursement of 71 invoices for physiotherapy treatment. In the same indictment, the Public Prosecutor’s Office, acting in accordance with Article 154 of the Strafprozessordnung (German Criminal Procedure Code), closed the part of the case relating to the pharmacy receipts without taking any further action, since the facts complained of still required substantial measures of inquiry. 8. On 18 November 2016, the ECB’s Chief Services Officer “acting on behalf of the Executive Board” initiated disciplinary proceedings against the applicant for an alleged breach of his professional duties requiring the involvement of the Disciplinary Committee and requested the latter to deliver an opinion in accordance with Article 8.3.15 of the Staff Rules. Initiated in the light of [the “report on a possible breach of professional duties” of 8 September 2016], those proceedings concerned the facts relating to the physiotherapy invoices and the pharmacy receipts. 9. The Disciplinary Committee exchanged several letters with the applicant and interviewed him on 13 February 2017. 10. On 5 September 2017, DG “Human Resources, Budget and Organisation” of the ECB drew up a second “report on a possible breach of professional duties” within the meaning of Article 8.3.2 of the Staff Rules … That report concerned learning support invoices for the applicant’s two children, for which he had claimed reimbursement under Article 3.8.4 of the Staff Rules in 2010, 2012 and 2014 and again in January 2017. According to that report, there was a reasonable suspicion that the invoices issued by Tutor C for learning support were not genuine and authentic. 11. In the light of [that second report], the Chief Services Officer, “acting on behalf of the Executive Board”, decided on 19 September 2017 to extend the mandate of the Disciplinary Committee to those facts. 12. On 12 October 2017, the ECB filed a complaint with the Public Prosecutor’s Office concerning the part of the case relating to the learning support invoices. 13. The Disciplinary Committee interviewed the applicant and his wife on 17 October 2017. 14. On 18 October 2017, a criminal chamber of the Landgericht Frankfurt am Main (Regional Court, Frankfurt am Main, Germany) acquitted the applicant of the charges relating to the physiotherapy invoices for “reasons of facts”, the court having concluded, “following the main proceedings, it was not established … that there was a basis for the accusations”. 15. On 11 April 2018, the Disciplinary Committee delivered its opinion. First of all, it considered that the inauthenticity of the physiotherapy invoices had not been sufficiently established, but that the applicant knew that B was a beautician, not a physiotherapist, or that he should at the very least have questioned her qualifications. Next, the Disciplinary Committee considered that the facts giving rise to the complaints concerning the submission of the pharmacy receipts and learning support invoices were also not sufficiently established and that it was appropriate to close the proceedings in that regard, subject to re-opening them if new evidence were to be produced. In the light of the foregoing, the Disciplinary Committee recommended that a penalty be imposed on the applicant consisting of a temporary salary reduction of EUR 400 per month over a period of 12 months. 16. After the applicant had submitted his observations on the Disciplinary Committee’s opinion of 11 April 2018, the Chief Services Officer notified to him a decision of 10 July 2018 by which the Executive Board decided to exercise itself the disciplinary power in this case (“the decision of 10 July 2018”). 17. The Chief Services Officer subsequently notified to the applicant a draft decision of the Executive Board seeking to dismiss him without notice. An exchange of correspondence followed. 18. On 7 May 2019, the Executive Board decided to dismiss the applicant without notice (“the dismissal decision”). 19. First, the Executive Board found that (i) “for almost five years, [the applicant] showed complete and persistent disinterest whether [B] had the required qualifications for providing the physiotherapy services, despite their existing clear and manifest objective reasons for inquiring about her qualifications”, and (ii) he had “actively concealed part of the information” from Company A and from the ECB. 20. Second, as regards the pharmacy receipts, of which there were more than 500, the Executive Board took the view that the applicant could not have been unaware that it was very unusual in Germany for them to be handwritten and that there were objective indicia proving that they were not genuine and authentic. 21. Third, as regards the learning support invoices, the Executive Board found, inter alia, that the tax number on those invoices was almost identical to that mentioned on the physiotherapy invoices and that the Frankfurt am Main tax authorities (Germany) had confirmed that it was not genuine. The Executive Board also observed that C’s address on those invoices was also virtually identical to that of B. The ECB therefore considered that it was highly unlikely that the applicant had not noted those similarities. Consequently, the Executive Board found that the applicant had submitted learning support invoices for reimbursement which were not genuine and authentic. 22. In the light of all the foregoing, the Executive Board stated, in essence, that the right to claim reimbursement for medical expenses and learning support did not mean that members of staff may disregard circumstances vitiating the issue of invoices or receipts which were such that any reasonable person exercising ordinary care would have raised questions as to whether those invoices or receipts constituted appropriate documentation entitling them to reimbursement. In the presence of such circumstances, the Executive Board took the view that it was for members of staff at least to inform the administration thereof of their own volition and to cooperate with the administration. The Executive Board therefore concluded that the applicant was guilty, first, of having breached his duty of loyalty to the institution, second, of having failed to respect the ECB’s common values and to conduct himself in his professional and private life in accordance with the ECB’s statute, third, of having continuously breached his duty to preserve the institution’s financial interests and, fourth, of having put at risk the Bank’s reputation. 23. In the meantime, on 30 April 2019, the Public Prosecutor’s Office informed the applicant that the investigation relating to the learning support invoices had been closed pursuant to Article 170(2) of the Code of Criminal Procedure, on the ground that there were not sufficient suspicions to bring a public prosecution. 24. By letter of the same day, registered by the ECB on the following 15 May, the Public Prosecutor’s Office also informed the ECB that that investigation had been closed. In that letter, the Public Prosecutor’s Office added that searches had revealed that there was no official registration of C and that the tax number on her invoices had not been allocated. However, the Public Prosecutor’s Office considered that it could not be ruled out that the invoices in question were indeed issued and paid by the accused and that the false information contained therein could be explained by “other reasons”. 25. By letter of 12 June 2019, the applicant informed the Chief Services Officer of the outcome of the proceedings brought by the Public Prosecutor’s Office concerning the learning support invoices and requested that the ECB reconsider its dismissal decision. 26. By letter of 26 June 2019, the Chief Services Officer informed the applicant of the decision of the Executive Board of previous 25 June refusing to reopen the disciplinary proceedings … That decision is based on two grounds. The ECB contended, first of all, that the Public Prosecutor’s Office had to ascertain whether the alleged facts constituted an infringement of German criminal law in the light of the evidential criteria applicable to criminal proceedings, whereas it had to examine whether the facts alleged constituted an infringement of its own employment rules in the light of different evidential criteria applicable to disciplinary proceedings. Next, it stated that the Public Prosecutor’s Office had confirmed that there was no official registration of C and that the tax number on the invoices was not genuine.’
12 By application lodged at the Registry of the General Court on 18 July 2019, the appellant brought an action for annulment of the contested decisions, reinstatement and compensation for the non-material damage which he allegedly suffered as a result of those decisions and the duration of the disciplinary procedure.
13 In support of his claims for annulment, the appellant formally put forward 9 pleas in law, but the General Court, in the light of the content of the application, found 10, the first alleging lack of competence on the part of the author of the contested decisions, the second alleging infringement of Article 8.3.2 of the Staff Rules and the principle of legal certainty, the third alleging violation of the adage ‘disciplinary proceedings arising out of a criminal offence must await the outcome of the criminal trial’, the principle of sound administration and the duty to have regard for the welfare of officials, the fourth alleging infringement of Article 8.3.7 of the Staff Rules and the principle of impartiality enshrined in Article 41 of the Charter of Fundamental Rights of the European Union (‘the Charter’), the fifth alleging breach of the rights of the defence, the sixth alleging manifest errors of assessment, the seventh alleging breach of the right to the presumption of innocence and of Article 48 of the Charter, the eighth alleging infringement of the reasonable period of time and of the duty to have regard for the welfare of officials, the ninth alleging infringement of the obligation to state reasons, and the tenth, formulated in the alternative, alleging breach of the principle of proportionality.
14 By the judgment under appeal, the General Court dismissed the 10 pleas in law raised and, therefore, the claims for annulment, the second and third heads of claim and, consequently, the action as a whole.
15 The appellant claims that the Court of Justice should: - set aside the judgment under appeal; - annul the contested decisions; - in any event, order the ECB to pay compensation for his non-material damage assessed at EUR 20000; - order the ECB to pay the costs incurred before the General Court and the Court of Justice.
16 The ECB contends that the Court should: - dismiss the appeal in its entirety; - order the appellant to pay the costs.
17 The appellant puts forward five grounds in support of his appeal, the first alleging an error of law as to the competence of the author of the contested decisions, the second, which is divided into two parts, alleging an error of law in relation to Article 8.3.2 of the Staff Rules and the principle of legal certainty, the third alleging breach of the right to the presumption of innocence and infringement of Article 48 of the Charter, the fourth alleging infringement of Article 8.3.7 of the Staff Rules and of the principle of impartiality, and the fifth alleging failure to comply with the obligation of judicial review.
18 By his first ground of appeal, which refers to paragraphs 45 to 53 of the judgment under appeal, the appellant claims that the General Court wrongly rejected his first plea at first instance alleging that the Executive Board lacked competence to adopt the contested decisions.
19 In the first place, the appellant claims that the decision of 10 July 2018, although it may be regarded as an individual act, amended, by withdrawing the delegation conferred on the Chief Services Officer, a general act, namely Article 8.3.17 of the Staff Rules. Due to the double nature of such a decision, the Staff Committee should have been consulted.
20 In the second place, the appellant claims that the General Court’s interpretation that the Executive Board may individually amend the rule laid down in that article by withdrawing that delegation implies that the division of powers within the ECB is not clearly defined, contrary to the requirements of the judgment of 9 July 2008, Kuchta v ECB (F‑89/07, EU:F:2008:97, paragraph 62). Consequently, the principle of legal certainty and the rules of sound administration were not respected, without the fact that the appellant was informed of the decision of 10 July 2018 being sufficient to remedy that situation.
21 In the third place, the appellant claims that the General Court erred in law in finding that he had not been deprived of any guarantees, since the adoption of a decision by a collegiate body, while constituting a guarantee of impartiality, does not provide all the legal guarantees.
22 The ECB considers that the first ground of appeal must be rejected as inadmissible and, in any event, unfounded.
23 In that regard, the appellant does not identify with sufficient precision the points criticised in the judgment under appeal, confines himself to repeating the view set out at first instance and seeks to contest factual findings by the General Court to the effect that the decision of 10 July 2018 did not lead to an amendment of the Staff Rules.
24 On the merits, the ECB contests the appellant’s argument, arguing, inter alia, that in the decision of 10 July 2018 the Executive Board did not amend Article 8.3.17 of those rules and merely applied what is inherent in that provision.
25 It follows from the second subparagraph of Article 256(1) TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 168(1)(d) and Article 169(2) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested paragraphs of the judgment under appeal and the legal arguments specifically advanced in support of the appeal, failing which the appeal or the ground of appeal concerned may be inadmissible (judgment of 15 December 2022, Picard v Commission, C‑366/21 P, EU:C:2022:984, paragraph 52 and the case-law cited).
26 In the present case, contrary to the ECB’s contention, the appeal sets out precisely the contested paragraphs of the judgment under appeal in the context of the first ground of appeal, together with the reasons why those paragraphs are, in the appellant’s view, erroneous, thereby enabling the Court to exercise its review of legality.
27 Furthermore, in so far as the ECB criticises the appellant for merely repeating the arguments which it put forward before the General Court and thus requesting a mere re-examination of those arguments, it must be noted that, by that ground, the appellant is challenging the interpretation and application of EU law by the General Court.
28 Once an appellant challenges the interpretation or application of EU law by the General Court, the points of law examined at first instance may be discussed again in the course of an appeal. If an appellant could not thus base his or her appeal on pleas and arguments already relied on before the General Court, an appeal would be deprived of part of its purpose (judgment of 15 July 2021, DK v EEAS, C‑851/19 P, EU:C:2021:607, paragraph 33 and the case-law cited).
29 Finally, as the Advocate General noted in point 27 of his Opinion, contrary to what the ECB seems to suggest, the determination of the legal nature of an act adopted by the administration on the basis of the applicable EU regulation and the effects produced by that act are questions of law subject to review by the Court of Justice.
30 It follows that the first ground of appeal is admissible.
31 As to the merits of that ground, in the first place, the appellant’s argument that the adoption of the decision of 10 July 2018 required prior consultation of the Staff Committee is based on the premiss that, by virtue of Article 8.3.17 of the Staff Rules, the Executive Board relinquished the power conferred on it by Article 44(ii) of the Conditions of Employment to itself impose a disciplinary sanction such as dismissal on members of ECB staff in salary grade I or below. It must therefore be determined whether, under those rules, which were adopted by the Executive Board itself and which, as is clear from Article 21.3 of the Rules of Procedure, implement the Conditions of Employment, the Executive Board remained competent to impose the sanction of dismissal.
32 In that regard, first, the wording of Article 8.3.17 of those rules, in particular the words ‘on behalf of the Executive Board’ which appear therein, makes it clear that the decisions of the Chief Services Officer in disciplinary matters express those of the Executive Board, which assumes full responsibility for them and to which they are legally attributable, as the General Court rightly held in paragraph 49 of the judgment under appeal and as the appellant does not dispute in his appeal. Accordingly, the decisions taken by the Chief Services Officer pursuant to that provision retain the status of decisions expressing those of the Executive Board.
33 It therefore follows from a literal interpretation of Article 8.3.17 that, contrary to the premiss underlying the appellant’s arguments, by adopting that provision, the Executive Board did not transfer a power of decision of its own to the Chief Services Officer which would prevent it from deciding itself, in a particular case, on the most appropriate sanction to be applied to members of staff.
34 Secondly, as regards the contextual and teleological interpretation of Article 8.3.17 of the Staff Rules, Article 8.3.2 of those rules provides that the Executive Board, for members of staff above salary grade L, or, ‘on behalf of the Executive Board’, the Chief Services Officer, for members of staff at that grade or below, may decide to initiate disciplinary proceedings. According to Article 8.3.2 thereof, where the procedure is initiated by the Chief Services Officer, the Executive Board must be informed immediately.
35 As the Advocate General pointed out, in essence, in points 60 and 62 of his Opinion, it follows that the purpose of the obligation to provide information is to enable the Executive Board, where appropriate, to intervene in the procedure and to decide itself on the disciplinary measure. Such an option for the Executive Board to intervene in a procedure initiated by the Chief Services Officer is therefore inherent in the system of empowerment set out in Article 8.3.17 of those rules.
36 Article 44(ii) of the Conditions of Employment reserves the right of the Executive Board as a collegiate authority to impose the most serious sanctions, and only two less severe sanctions, namely a written warning and a written reprimand, may be imposed by a single person, namely the Director-General of Human Resources or a member of the Executive Board, depending on the grade of the members of staff concerned, which also follows from Article 8.3.2 of the Staff Rules.
37 Thus, as the Advocate General pointed out in point 58 of his Opinion, it cannot be held that, by adopting Article 8.3.17 of the Staff Rules, the Executive Board relinquished its power of decision as regards individual decisions on disciplinary penalties (see, to that effect, judgment of 26 May 2005, Tralli v ECB, C‑301/02 P, EU:C:2005:306, paragraphs 60 and 61).
38 In that regard, as the General Court rightly stated in paragraph 49 of the judgment under appeal, the institutions and bodies of the European Union have a wide discretion internally to organise themselves according to their tasks and needs. The need to ensure that the decision-making body is able to function is also a principle inherent in any institutional system (see, to that effect, judgment of 26 May 2005, Tralli v ECB, C‑301/02 P, EU:C:2005:306, paragraphs 58 and 59 and the case-law cited).
39 It follows from the foregoing that the Executive Board remains competent, under the Staff Rules, to exercise disciplinary authority itself in respect of members of staff in salary grade I or below such as the appellant, as it decided in respect of the latter by the decision of 10 July 2018.
40 It follows that that decision is not of a double nature and that its adoption did not require consultation of the Staff Committee.
41 In the second place, as regards the question whether, as the appellant maintains, such an interpretation has the effect that the division of powers in disciplinary matters within the ECB is not clearly defined, which would result in a breach of the principle of legal certainty and the rules of sound administration, it should be borne in mind that that principle requires that EU rules enable those concerned to know precisely the extent of the obligations which are imposed on them, since individuals must be able to ascertain unequivocally what their rights and obligations are (see, to that effect, judgment of 22 February 2022, Stichting Rookpreventie Jeugd and Others, C‑160/20, EU:C:2022:101, paragraph 41).
42 That principle and the necessary transparency of administrative decisions require, in principle, that the allocation of powers and enabling decisions within the institutions be published (see, to that effect, judgment of 23 September 1986, AKZO Chemie and AKZO Chemie UK v Commission, 5/85, EU:C:1986:328, paragraph 39).
43 As the General Court pointed out in paragraph 50 of the judgment under appeal, Article 8.3.17 of the Staff Rules is published and the ECB justified the choice not to publish the decision of 10 July 2018 in the interest of the appellant, such a choice not being contested by the latter in his appeal.
44 Moreover, having regard to its wording and context, as examined in paragraphs 31 to 37 of the present judgment, Article 8.3.17 is sufficiently clear, as the Advocate General pointed out in point 73 of his Opinion, to enable members of staff to understand that disciplinary sanctions are always imposed on behalf of the Executive Board, which assumes responsibility for them, and that, where appropriate, the Executive Board may intervene in disciplinary proceedings in order to impose such a sanction.
45 Consequently, the General Court did not err in law in holding, in paragraphs 45 and 51 of the judgment under appeal, that, under the Staff Rules, the Executive Board was not required, prior to the adoption of the decision of 10 July 2018 and the contested dismissal decision, which had not amended those rules, to consult the Staff Committee.
46 In the third place, the appellant’s argument that the General Court erred in law in holding, in paragraph 52 of the judgment under appeal, that the latter was not deprived of any guarantee as a result of the adoption of the contested decisions by the Executive Board must be rejected as being inoperative. The assessment of the General Court in that paragraph is included for the sake of completeness.
47 According to settled case-law, in the context of an appeal, objections directed against grounds of a judgment of the General Court included for the sake of completeness cannot lead to that judgment being set aside and must therefore be dismissed as being inoperative (judgment of 21 October 2021, Parliament v UZ, C‑894/19 P, EU:C:2021:863, paragraph 80 and the case-law cited).
48 In the light of the foregoing, the first ground of appeal must be rejected.
49 By the first part of his second ground of appeal, the appellant claims that, in paragraphs 93 to 96 of the judgment under appeal, the General Court erred in its legal classification of the facts with regard to the concept of ‘discovery of the facts’ referred to in Article 8.3.2 of the Staff Rules, which led it wrongly to reject his second plea in law at first instance alleging infringement of that provision and of the principle of legal certainty. The same error of law vitiates paragraphs 132 and 241 of that judgment.
50 In that regard, the appellant submits that his personal file did not include ‘payments’ or ‘proof of payment’, that the facts as known on the basis of that file were fully available by October 2014 at the latest and that the ECB was thus in a position to make the prima facie assessment required by the concept of ‘discovery of the facts’ at that date, which it failed to do. It follows that, contrary to what the General Court held in those paragraphs, the facts relating to the invoices for learning support were time-barred at the time of the initiation, on 19 September 2017, of the disciplinary proceedings concerning them. In addition, the appellant contests the General Court’s assessment that the sensitive nature of the data in his personal file had an impact in that regard and submits that there was no real reason for the Disciplinary Committee to carry out an in-depth examination of that file.
51 In his reply, the appellant adds that, by referring to the invoices for learning support in connection with the assessment of the claims that he paid B in cash, for the purposes of qualifying that concept of ‘discovery of the facts’, the General Court not only misinterpreted Article 8.3.2 but also distorted the file.
52 The ECB contends that that part must be rejected as inadmissible and, in the alternative, unfounded.
53 At the outset, it should be noted that, in the context of the appeal, the Court of Justice has no jurisdiction to establish the facts or, in principle, to examine the evidence which the General Court has accepted in support of those facts. Once that evidence has been properly obtained and that the general principles of law and the rules of procedural in relation to the burden of proof and the taking of evidence have been observed, it is for the General Court alone to assess the value which should be attached to the evidence produced to it, subject to the case of its distortion (judgments of 26 May 2005, Tralli v ECB, C‑301/02 P, EU:C:2005:306, paragraph 78, and of 30 June 2022, Camerin v Commission, C‑63/21 P, not published, EU:C:2022:516, paragraph 32 and the case-law cited). Where the General Court has found or assessed the facts, the Court of Justice also has jurisdiction to review the legal characterisation of those facts and the legal consequences which the General Court has drawn from them (judgment of 18 June 2020, Commission v RQ, C‑831/18 P, EU:C:2020:481, paragraph 93 and the case-law cited).
54 In the present case, it should be noted that, while the appellant relies on an erroneous characterisation of the facts falling within the concept of ‘discovery of the facts’ giving rise to the limitation period, he does not, by contrast, contest the General Court’s interpretation of that concept, in paragraph 64 of the judgment under appeal, according to which ‘it must be accepted … that discovery of the facts for the purposes of Article 8.3.2 of the Staff Rules occurs when the facts known are sufficient to enable a prima facie assessment of whether there has been a breach of professional duties’.
55 His arguments seek only to establish that the facts sufficient to allow such an assessment were known by October 2014 at the latest, claiming that the invoices for learning support were in his personal file and that that file did not contain any proof of payment.
56 By putting forward such arguments, the appellant is seeking merely to have his application re-examined, which the Court of Justice does not have jurisdiction to undertake (judgment of 15 July 2021, DK v EEAS, C‑851/19 P, EU:C:2021:607, paragraph 32 and the case-law cited).
57 Moreover, in so far as such an argument seeks to contest the facts as found and assessed by the General Court, it is also inadmissible by virtue of the case-law cited in paragraph 53 of the present judgment.
58 Finally, in so far as the appellant maintains in his reply that the General Court ‘distorted the file’, it is sufficient to point out that, under Article 127(1) of the Rules of Procedure, which is applicable to the appeal procedure by virtue of Article 190(1) of those rules, the submission of new pleas in law during the course of the proceedings is prohibited unless those pleas are based on matters of law and fact which came to light during the proceedings. Since the appellant could invoke such a distortion in his appeal, such an argument is inadmissible.
59 In the light of the foregoing, the first part of the second ground of appeal must be rejected.
60 By the second part of his second ground of appeal, submitted in the alternative, the appellant claims that the General Court, in paragraphs 98 to 100 and 203 of the judgment under appeal, in so far as the latter paragraph refers to paragraph 99 of that judgment, in the first place, added elements to the contested dismissal decision and exceeded its jurisdiction by considering that the fact that the first and second parts of the case were time-barred was not sufficient to uphold his second plea in law at first instance in its entirety and annul that decision. The appellant claims that there was no explanation in that decision, in particular as regards the principle of proportionality, as to why each of the three sets of facts had irreversibly affected their relationship of trust and was sufficient to justify dismissal.
61 In the second place, the General Court failed to respond to the complaints he had made in paragraph 158 of his application, in the context of his tenth plea in law at first instance, to the effect that the ECB had not explained why each of those three series of events had irreversibly affected that relationship in the light of that principle.
62 In his reply, the appellant states that it is the failure to take account of the principle of proportionality in the decision-making process that he contests and that the General Court ruled ultra petita by adding a statement of reasons that the contested dismissal decision did not contain and by classifying the loss of confidence as an aggravating circumstance in paragraphs 212 to 241 of the judgment under appeal.
63 The ECB contends that that part should be rejected.
64 First, as regards the appellant’s argument that the General Court failed to reply to the complaints which he had raised in paragraph 158 of his application, in the context of the tenth plea in law at first instance, that argument must be dismissed as unfounded. The General Court did indeed reply, in paragraphs 208 to 214 of the judgment under appeal, to the complaint that the aggravating circumstance relating to the loss of the relationship of trust contained in the contested dismissal decision was not distinct from the breaches of duty of which he was accused and was manifestly erroneous. The General Court also examined, in paragraphs 98 and 99 of that judgment, the claim that the ECB had not explained how each of the three sets of facts, taken in isolation, had ‘irreversibly affected the trust underlying the relationship’, as the appellant himself admits in paragraph 38 of his appeal. In addition, the General Court reviewed the proportionality of the contested dismissal decision in the light of the breaches resulting from the facts relating to the invoices for learning support in the context of the tenth plea in law, which was rejected in paragraph 244 of the judgment under appeal, and verified the sufficiency of the statement of reasons for that decision in paragraphs 182 to 193 of that judgment, which are not contested in the context of the present appeal.
65 Secondly, as regards the complaint against paragraph 99 of the judgment under appeal, it must be noted that the appellant’s criticism is based on an isolated reading of that paragraph. In paragraph 98 of the judgment under appeal, the General Court set out the reasons given by the ECB in the contested dismissal decision as to why each of the three aspects of the case had to be regarded as having irreversibly impaired the trust underlying its relationship with its staff.
66 For the remainder, the appellant’s argument that the General Court added elements to the contested dismissal decision, exceeded its jurisdiction and ruled ultra petita must be rejected as inadmissible in accordance with the case-law cited in paragraph 25 of the present judgment. The latter does not indicate with the precision required by that case-law the elements which, in his view, the General Court added to that decision or the reasons why it exceeded its jurisdiction or ruled ultra petita.
67 It follows that the second part of the second ground of appeal and, consequently, the second ground of appeal in its entirety must be rejected.
68 By his third ground of appeal, the appellant claims that the General Court erred in law in rejecting, in paragraphs 119 to 121, 124, 125 and 132 of the judgment under appeal, the seventh plea in law, alleging breach of the right to the presumption of innocence and of Article 48 of the Charter, and that that error of law similarly affected paragraphs 163 and 164 of that judgment. If the contested dismissal decision did not formally impute responsibility to the appellant on the ground that the invoices for learning support were not genuine and authentic, that decision classified them as non-genuine and the contested decisions were necessarily based on that fact, although the criminal proceedings against him for the same facts had been closed in the absence of any suspicion of guilt.
69 Thus, it was a clear distortion of the case file and of those decisions that the General Court did not consider the lack of authenticity of those invoices to be an essential condition for the appellant’s dismissal, that it described them as ‘inappropriate’ and that it failed to take into account the fact that the ECB had been informed that there could be no suspicion of fraud, so that those invoices could not be regarded as non-genuine. The General Court wrongly considered that his right to the presumption of innocence had not been breached by the adoption of the contested decisions.
70 In his reply, the appellant adds that, in deciding to close the investigation, the Public Prosecutor’s Office necessarily took the view that the invoices for learning support could not be regarded as forged and that the ECB wrongly maintained that that Public Prosecutor’s Office had confirmed the absence of registration of Tutor C and of a tax number.
71 The ECB contends that that ground must be rejected.
72 First of all, by the arguments put forward in support of his third ground of appeal, the appellant is in fact seeking to obtain a fresh assessment of the facts and evidence adduced by the Court of Justice, in particular the contested decisions and the findings of the Public Prosecutor’s Office, which, as is clear from the case-law cited in paragraph 53 of the present judgment, does not fall within its jurisdiction in the context of the appeal, save in the case of their distortion.
73 Next, in the case of such a distortion, in accordance with settled case-law, the appellant must indicate precisely the elements which were distorted by the General Court and demonstrate the errors of analysis which, in its assessment, led to that distortion. Furthermore, a distortion must be manifestly apparent from the documents in the file, without it being necessary to carry out a fresh assessment of the facts and evidence (judgment of 1 August 2022, Kerstens v Commission, C‑447/21 P, not published, EU:C:2022:612, paragraph 48 and the case-law cited).
74 It is also settled case-law that the review carried out by the Court of Justice in order to assess a ground of appeal alleging the distortion of evidence is limited to verifying that the General Court, in relying on that evidence, did not manifestly exceed the limits of a reasonable assessment of it (see, to that effect, judgments of 28 November 2019, LS Cable & System v Commission, C‑596/18 P, not published, EU:C:2019:1025, paragraph 25, and of 23 March 2023, PV v Commission, C‑640/20 P, EU:C:2023:232, paragraph 134 and the case-law cited).
75 In the present case, the appellant claims, in essence, that the General Court distorted the file and the contested decisions by describing the invoices for learning support, in paragraph 120 of the judgment under appeal, as ‘inappropriate’. According to the appellant, the General Court should have found that their lack of genuineness was an essential condition for his dismissal and that, following the closure of the criminal proceedings for fraud against him and the findings of the Public Prosecutor’s Office, the ECB could no longer consider those invoices to be non-genuine.
76 In paragraphs 119 and 120 of the judgment under appeal, the General Court held as follows: ‘119 In the present case, the applicant was the subject of a fraud investigation within the meaning of Article 263(1) of the German Criminal Code in the light of the learning support invoices. In its dismissal decision, the Executive Board held against the applicant the fact that he had not noted the similarities between the tax numbers and between the addresses on B’s physiotherapy invoices and those of C for learning support, although it could be inferred from those similarities that they were not genuine and authentic. … In addition, in the presence of objective circumstances raising doubts as to the right to reimbursement, the Executive Board considered also that it was for the member of staff in question to inform at least the administration. … 120 Consequently, … the ECB considered that the invoices submitted by the applicant were inappropriate for the purposes of the reimbursement of the learning support expenses, without formally attributing to him responsibility for the fact that they were not genuine and authentic. In its dismissal decision, the [ECB] merely, in essence, penalised negligence which it considered to be particularly serious for a member of staff of a financial institution. That decision thus contains no finding of guilt of the applicant in respect of the offence of fraud which was the subject of the criminal investigation (see, to that effect, ECtHR, 25 August 1987, Englert v. Germany, CE:ECHR:1987:0825JUD001028283, § 39) and is part of an administration’s autonomy in determining the legal characterisation of a disciplinary offence as compared to the enforcement of the same facts under criminal law.’
77 Since those two paragraphs thus contain a faithful summary of the content of paragraphs 29 to 32 of the contested dismissal decision, they do not reveal any distortion of that decision.
78 Furthermore, it follows from those paragraphs that, contrary to what the appellant claims, the lack of genuineness of the invoices for learning support was not an essential condition for his dismissal, since the ECB based that decision, as the General Court pointed out in paragraph 120, not on such lack of genuineness, but on negligence on the part of the appellant, which it considered to be particularly serious.
79 Moreover, although, in paragraph 124 of the judgment under appeal, the General Court found that the Executive Board’s refusal to reopen the proceedings after learning of the closure of the investigation into the invoices for learning support was based in particular on the fact that the Public Prosecutor’s Office had confirmed that there was no official registration of C and that the tax number appearing on its invoices was not true, there was no clear distortion of such a finding based, as is apparent from paragraph 24 of that judgment, on the letter from the Public Prosecutor’s Office sent to the ECB on 30 April 2019 and registered on 15 May 2019, nor is there any misreading of that letter by the General Court.
80 Finally, according to settled case-law, the presumption of innocence is a general principle of EU law, which is set out in Article 48(1) of the Charter. That principle is breached where a judicial decision or an official statement concerning an accused person contains a clear statement, made in the absence of a final conviction, that the person concerned has committed the offence in question. In that context, as the General Court rightly pointed out in paragraph 118 of the judgment under appeal, the importance of the choice of words used by the public authorities, as well as the particular circumstances in which they were formulated and the nature and context of the proceedings in question, must be emphasised (see, to that effect, judgment of 18 March 2021, Pometon v Commission, C‑440/19 P, EU:C:2021:214, paragraph 62 and the case-law cited).
81 As the General Court also noted in paragraph 123 of the judgment under appeal, one of the purposes of the presumption of innocence is to prevent individuals who have benefited from a waiver of prosecution from being treated by the public authorities as if they were in fact guilty of the offence attributed to them (ECtHR, 28 June 2018, G.I.E.M. S.R.L. and Others v. Italy, CE:ECHR:2018:0628JUD000182806, § 314).
82 Moreover, it follows from the case-law of the European Court of Human Rights that there is no automatic violation of the presumption of innocence when a person is found guilty of a disciplinary offence on the basis of facts identical to those referred to in a previous criminal charge which did not result in a conviction. Provided that they do not assert criminal responsibility, disciplinary bodies have the power and capacity to establish independently the facts of the cases brought before them (ECtHR, 13 April 2021, Istrate v. Romania, CE:ECHR:2021:0413JUD004454613, § 59).
83 As the General Court found in paragraphs 120 and 125 of that judgment, no finding of guilt in respect of the offence of fraud which was the subject of the criminal investigation is apparent from the contested decisions, so that the General Court did not err in law in holding, in paragraphs 121 and 125 of that judgment, that the adoption of the contested decisions did not breach the appellant’s right to be presumed innocent.
84 In the light of the foregoing, the third ground of appeal must be rejected.
85 By his fourth ground of appeal, which refers to paragraphs 139 to 146 of the judgment under appeal, the appellant claims that the General Court wrongly rejected the fourth plea at first instance, alleging infringement of Article 8.3.7 of the Staff Rules and the principle of impartiality. First of all, the General Court erred in law in holding that the Disciplinary Committee had not acted unreasonably or conducted a biased search in verifying the appellant’s assertion that he was in the habit of paying his invoices in cash, whereas the legal question which the General Court had to examine was whether the procedure provided for authorised that committee to carry out such verifications. The General Court should have found that that was not the case, as the mandate given to that committee concerned only physiotherapy invoices and pharmacy receipts.
86 The appellant adds that that committee was biased, that its personal file could not reveal any information and that the case-law cited by the General Court does not support its considerations. Lastly, the General Court distorted the file in so far as the fact, noted by the appellant in paragraph 141 of the judgment under appeal, that his previous counsel had doubted whether each payment by B corresponded to a withdrawal was not included in the contested decisions, and it substituted itself for the Disciplinary Committee by putting forward reasons which were not those which had guided it. It follows that the invoices for learning support were collected in breach of the essential procedural requirements and constituted unlawful evidence.
87 The ECB contends that that ground of appeal is unfounded.
88 By his fourth ground of appeal, the appellant claims, in essence, that the procedure followed by the Disciplinary Committee in collecting the invoices for learning support as evidence was unlawful and that those invoices were not obtained regularly, which, in accordance with the case-law cited in paragraph 53 of the present judgment, is admissible in an appeal.
89 However, in so far as, by those arguments, the appellant criticises the General Court for not having assessed that legal question or the plea raised before it, those arguments cannot succeed.
90 It is clear from paragraph 145 of the judgment under appeal that the General Court necessarily found that that committee was authorised to consult his personal file and to carry out investigations in that file, and that the procedure it had followed to collect the invoices for learning support was legal.
91 In that regard, first, it should be noted that the reasoning of the General Court may be implicit provided, in particular, that it enables the interested parties to know the reasons why their arguments were not upheld and the Court of Justice to have sufficient information to carry out its review, which is the case here (see, to that effect, judgment of 9 March 2017, Ellinikos Chrysos v Commission, C‑100/16 P, EU:C:2017:194, paragraph 32 and the case-law cited).
92 Secondly, contrary to what the appellant claims, that reasoning is not vitiated by an error of law.
93 While the Disciplinary Committee’s terms of reference did indeed relate to physiotherapy invoices and pharmacy receipts, as the appellant had maintained at first instance, the General Court rightly considered, in particular in paragraphs 136 and 145 of the judgment under appeal, that the committee’s task, under the Staff Rules, was to investigate and establish the facts as thoroughly as possible, to give an opinion on their accuracy, to assess their seriousness and to propose a possible disciplinary measure. In order to fulfil that task, that committee may need access to the personal file of the person at issue.
94 Moreover, in making such findings, the General Court in no way substituted itself for the Disciplinary Committee, contrary to what the appellant claims.
95 For the remainder, it appears that the appellant is confining himself to repeating arguments which he presented before the General Court without explaining precisely why the latter erred in law by rejecting them, and that he is thus seeking to obtain a fresh assessment of the facts and evidence by the Court of Justice, which does not fall within its jurisdiction in the context of the appeal, as is clear from the case-law cited in paragraph 53 of the present judgment, apart from any possible distortion.
96 Finally, in so far as the appellant raises such a complaint of distortion, he does not indicate precisely which evidence was distorted by the General Court or, a fortiori, demonstrate any errors of analysis which the latter may have made, contrary to the requirements of the case-law referred to in paragraph 73 of the present judgment.
97 It follows that the fourth ground of appeal must be rejected.
98 By its fifth ground of appeal, the appellant claims that the General Court erred in law in rejecting the sixth plea in law alleging manifest errors of assessment. In addition to the fact that paragraphs 163 and 164 of the judgment under appeal were erroneous for the reasons given in support of his third ground of appeal, the General Court erred in law in paragraphs 165, 166 and 173 of that judgment, in so far as the appellant had shown that the ECB had failed to take into account numerous items of evidence, in particular the statements of his wife and daughters. The appellant adds that, contrary to what is stated in paragraph 160 of that judgment, the General Court did not ensure the effectiveness of the judicial review guaranteed by Article 47 of the Charter, in that it did not exercise full control over the accuracy of the facts and the probative value of the evidence, nor did it verify its material accuracy, reliability and consistency or carry out a thorough examination of that evidence.
99 The ECB contends that that ground of appeal is inadmissible and, in any event, unfounded.
100 As is apparent from paragraphs 158 to 162 of the judgment under appeal, which are not challenged in the present appeal, the General Court reclassified the sixth plea in law at first instance as alleging not manifest errors of assessment by the ECB in the grounds of the contested dismissal decision but an incomplete examination of the circumstances of the case by the ECB, errors in the assessment of the evidence and an error of law. The General Court considered that such a reclassification was necessary since, in accordance with the requirement of effectiveness of judicial review guaranteed by Article 47 of the Charter, it was incumbent on it, as is clear from paragraph 160 of the judgment under appeal, to exercise full review of the accuracy of the facts, to verify the factual accuracy of the evidence relied on as well its reliability and consistency, and to carry out a full review of the assessment of the probative value of a document and a thorough examination of the evidence.
101 In considering that plea, the General Court rejected, in paragraphs 163 and 164 of the judgment under appeal, the appellant’s claim that the ECB had disregarded the closure of the criminal proceedings relating to the invoices for learning support, a claim which was merged with the third and seventh pleas in law at first instance, which were held to be unfounded. In paragraphs 165 and 166 of that judgment, it stated that, while the appellant claimed that the ECB had disregarded his statements and those of his family in considering that the invoices of Tutor C were not sincere and genuine, he had merely reproduced his statements and those of his wife made during the administrative procedure, without explaining why the ECB had committed an error of assessment in not finding them convincing and in noting that he had not adduced any evidence to substantiate them. Furthermore, in paragraph 173 of that judgment, the General Court found that the appellant argued to no avail that the ECB had ignored the fact that the condition of one of his children did not require knowledge of C’s contact details in order to organise lessons.
102 First of all, in so far as, in his appeal, the appellant refers to the arguments put forward in support of the third ground of appeal in order to contest paragraphs 163 and 164 of the judgment under appeal, those arguments must be rejected on grounds similar to those set out in paragraphs 72 to 84 of the present judgment.
103 Moreover, in so far as the appellant criticises paragraphs 165, 166 and 173 of the judgment under appeal on the ground that the ECB did not take into account numerous items of evidence such as his statements and those of his family, it should be noted that, apart from those statements, to which the appellant refers in general terms, he does not specify what evidence he allegedly provided to the ECB or to the General Court which was not taken into account by the latter. Moreover, it appears that, by that argument, the appellant is merely repeating arguments which he had submitted to the General Court and is in fact seeking to obtain from the Court of Justice a fresh assessment of the facts and evidence and of the value attributed to them by the General Court, which is not subject to the Court of Justice’s review, except in the case of distortion, as is apparent from the case-law cited in paragraph 53 of the present judgment. The appellant does not invoke such a distortion in the context of the present ground of appeal.
104 Finally, if the appellant maintains that the General Court did not carry out the full review which it was required to carry out in accordance with the case-law cited in paragraph 160 of the judgment under appeal, it confines itself in its appeal to a general statement without specifying which points of that judgment are being criticised or developing legal arguments in that regard. In accordance with the case-law referred to in paragraph 25 of the present judgment, an appeal must state precisely the points criticised in the judgment the annulment of which is sought and the legal arguments which specifically support that application, failing which the plea in law concerned is inadmissible. It follows that such a statement must be rejected as inadmissible.
105 In the light of those considerations, the fifth ground of appeal must be rejected.
106 Since none of the grounds of appeal have been upheld, the appeal should be dismissed in its entirety.
107 Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to costs. Under Article 138(1) of those rules, applicable to the procedure on an appeal by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
108 Since the ECB has applied for costs and the appellant has been unsuccessful in his appeal, the appellant must be ordered to bear his own costs and to pay those incurred by the ECB.