Case T‑787/14 P

European Central Bank

v

Maria Concetta Cerafogli

‛Appeal — Civil service — ECB Staff — Access to documents — Documents relating to the dispute between the parties in the proceedings — Partial refusal of access — Rule of correspondence between the application and the complaint — Plea of illegality’

Summary — Judgment of the General Court (Appeal Chamber), 27 October 2016

1. Actions brought by officials — Staff of the European Central Bank — Prior administrative complaint — Correspondence between the complaint and the application — Same subject-matter and legal basis — Submissions and arguments not made in the complaint but closely related to it — Admissibility — Change of the legal basis of a claim — Not sufficient to characterise it as having a new cause of action

   (Staff Regulations, Arts 90(2), and 91; Conditions of Employment of ECB Staff, Art. 42; Staff Rules of the ECB, Art. 8.1)

2. Plea of illegality — Scope — Measures the illegality of which may be pleaded — General measure providing the basis of the contested decision — Need for a legal connection between the contested measure and the contested general measure — Effect of illegality of a measure of general scope

   (Art. 277 TFEU)

3. Actions brought by officials — Prior administrative complaint — Correspondence between the complaint and the application — Same subject-matter and legal basis — Plea of illegality raised for the first time in the context of the action — Admissibility

   (Charter of Fundamental Rights of the European Union, Art. 47; Staff Regulations, Art. 91; Conditions of Employment of ECB Staff, Art. 42; Staff Rules of the ECB, Art. 8.1)

4. EU law — Principles — Rights of defence — Application to any procedure opened against any person likely to end in a measure adversely affecting him — Principle to be assured even in the absence of legislation governing the procedure in question — Scope

1.  Like Article 90(2) of the Staff Regulations, paragraph 42 of the Conditions of Employment and Article 8.1 of the Staff Rules of the European Central Bank state that ECB staff may bring legal proceedings only after exhausting the pre-litigation procedure, which, as regards ECB staff, is in two stages: a request for pre-litigation review and then a preliminary complaint.

   The legality of the definitive act adversely affecting the applicant is assessed in the light of the elements of fact and of law available to the institution on the adoption, whether express or implied, of that response, without prejudice to the possibility, for the institution to provide supplementary explanations during the contentious stage. The rule of correspondence between the complaint and the subsequent action requires that, for a plea before the Courts of the European Union to be admissible, it must have already been raised in the pre-litigation procedure, thus enabling the appointing authority to know in sufficient detail the criticisms made of the contested decision.

   In actions brought by officials, claims before the Courts of the European Union may contain only heads of claim based on the same matters as those raised in the complaint, although those heads of claim may be developed before the Courts of the European Union by the presentation of pleas in law and arguments which, whilst not necessarily appearing in the complaint, are closely linked to it.

   However, first, since the pre-litigation procedure is informal in character and those concerned are acting without the assistance of a lawyer at that stage, the administration must not interpret the complaints restrictively but must, on the contrary, examine them with an open mind. Secondly, it is not the purpose of Article 91 of the Staff Regulations, the corresponding provisions of the Conditions of Employment or Article 8.1 of the Staff Rules, to bind strictly and absolutely the contentious stage of the proceedings, if any, provided that the action changes neither the legal basis nor the subject matter of the complaint.

   Whilst it is necessary that the subject-matter and cause of action of the dispute remain unchanged between the complaint and the action in order to allow an amicable settlement of the dispute, by informing the appointing authority of the applicant’s criticisms at the complaint stage, the interpretation of those concepts must not have the effect of restricting the scope for the person concerned effectively to challenge a decision adversely affecting him.

   Consequently, the concept of the subject-matter of the dispute, which corresponds to the claims of the person concerned, and the concept of cause of action, which corresponds to the legal and factual basis for those claims, must not be interpreted restrictively. Merely changing the legal basis of a dispute is not sufficient to characterise it as having a new cause of action. There may be a number of legal bases supporting a single claim and, consequently, a single cause of action. In other words, relying in the application on the infringement of a specific provision which was not relied on in the complaint does not necessarily mean that the cause of action of the dispute has thereby been altered. Consideration must be given to the substance of the cause of action and not merely to the wording of its legal bases, and the Union judicature must ascertain whether there is a close connection between its bases and whether they essentially relate to the same claims.

   (see paras 32-40)

2.  See the text of the decision.

   (see paras 41-46)

3.  Only the court is entitled, under the terms of Article 277 TFEU, to rule that an act of general application is unlawful and to draw the consequences of the inapplicability which results from this with regard to the act of individual scope contested before it. The institution to which the complaint is made is not afforded such jurisdiction by the Treaties.

   The institution may withdraw or repeal an act of general application of which it is the author, where it considers that that act is vitiated by illegality, but such a withdrawal, or such repeal, is not equivalent to a finding of illegality or to the effects that result from such a finding, which may only be determined by the court in accordance with Article 277 TFEU. In such circumstances, the formal requirement of informing the institution, in the context of a complaint, of a plea of illegality of an act of general application, failing which such a plea will be subsequently declared inadmissible before the Courts of the European Union, whereas the fate which that institution may reserve for that plea is not equivalent to a finding of illegality by the Courts of the European Union, in so far as the institution is the author of that act, is contrary to the structure and purpose of the plea of illegality.

   Article 47 of the Charter of Fundamental Rights of the European Union is not intended to change the system of judicial review laid down by the Treaties, and particularly the rules relating to admissibility for direct actions before the courts of the European Union.

   The possibility of invoking a plea of illegality in connection with a dispute between a staff member and an institution is subject to several conditions of admissibility: with regard to an incidental legal remedy, it requires that an independent action have been brought, that it be brought against a decision adversely affecting the official, that that independent action be admissible, that the staff member not be able to seek annulment of the act of general application that served as the basis for the decision adversely affecting him, and that there be a sufficient connection between the act of general application and the contested individual decision. However, the rationale of the legal framework of the plea of illegality and, in particular, the considerations relating to the fact that the court alone has the authority to determine the inapplicability of an act of general application, lead to the conclusion that raising the plea prior to the complaint stage cannot constitute an additional condition of admissibility.

   The incidental nature of the plea of illegality does not make it impossible to raise such a plea at the complaint stage. However, the fact that a staff member is entitled to raise such a plea at the complaint stage does not imply that failure to do so will result in the subsequent inadmissibility of such a plea before the Courts of the European Union.

   (see paras 49, 55, 56, 66-68, 70)

4.  See the text of the decision.

   (see para. 72)