DI v European Central Bank.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2023:500
• Date: 22 June 2023
• Docket Number: C-513/21
• Celex Number: 62021CJ0513
• Court: Court of Justice (European Union)

JUDGMENT OF THE COURT (First Chamber)

22 June 2023 (*)

(Appeal – Civil service – Staff of the European Central Bank (ECB) – Conditions of employment – Disciplinary proceedings – Competent authority – Delegation – Legal certainty – Time-barred disciplinary proceedings – Presumption of innocence – Criminal proceedings – Distortion – Absence)

In Case C‑513/21 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 19 August 2021,

DI, represented by L. Levi, avocate,

appellant,

the other party to the proceedings being:

European Central Bank (ECB), represented by F. von Lindeiner, F. Malfrère and M. Van Hoecke, acting as Agents, and by B. Wägenbaur, Rechtsanwalt,

defendant at first instance,

THE COURT (First Chamber),

composed of A. Arabadjiev, President of the Chamber, P.G. Xuereb, T. von Danwitz (Rapporteur), A. Kumin and I. Ziemele, Judges,

Advocate General: M. Szpunar,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after hearing the Opinion of the Advocate General at the sitting on 12 January 2023,

gives the present

Judgment

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.

Legal framework

The Statute of the ESCB

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.’

The Rules of Procedure

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.’

The Conditions of Employment

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 …’

The Staff Rules

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 …’

Background to the dispute

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 61 490, 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...