Case T‑514/19

DI

v

European Central Bank

Judgment of the General Court (Fourth Chamber, Extended Composition), 9 June 2021

(Civil service – ECB staff – Reimbursement of medical expenses and education expenses – Forgery – Disciplinary proceedings – Dismissal – Criminal proceedings – No further action taken – Acquittal – Competence of the Executive Board – Legal certainty – Time-barred disciplinary proceedings – Adage according to which ‘disciplinary proceedings arising out of a criminal offence must await the outcome of the criminal trial’ – Presumption of innocence – Impartiality of the Disciplinary Committee – Error of law – Probative value of the evidence – Reasonable time – Proportionality of the penalty – Intensity of the judicial review – Liability)

1. Officials – Staff of the European Central Bank – Representation – Staff Committee – Obligatory consultation – Scope – Decision of the Executive Board of the Bank to exercise disciplinary power itself in respect of a member of staff instead of the authority entitled by delegation to do so – Not included

   (Protocol on the Statute of the European System of Central Banks and of the European Central Bank, Art. 11.6; Conditions of Employment for Staff of the European Central Bank, Arts 44(ii), 48 and 49; European Central Bank Staff Rules, Art. 8.3.17)

   (see paragraphs 46-52)

2. Officials – Staff of the European Central Bank – Disciplinary measures – Proceedings – Initiation – Time limit – Mandatory nature

   (European Central Bank Staff Rules, Art. 8.3.2)

   (see paragraph 58)

3. Officials – Staff of the European Central Bank – Disciplinary measures – Proceedings – Initiation – Time limit – Starting point of the limitation period – Discovery of the facts – Concept – Need for exact knowledge of the facts – None

   (European Central Bank Staff Rules, Arts 8.3.2, 8.3.14 and 8.3.15)

   (see paragraphs 63-66)

4. Officials – Staff of the European Central Bank – Disciplinary measures – Proceedings – Principle of not addressing the situation of a member of staff who is the subject of criminal proceedings on the basis of the same facts – Applicability to the Bank – None

   (Staff Regulations, Annex IX, Art. 25; Conditions of Employment for Staff of the European Central Bank, Art. 9(c))

   (see paragraphs 103-106)

5. Officials – Staff of the European Central Bank – Disciplinary measures – Penalty – Dismissal – Decision adopted in respect of a member of staff who is the subject of pending criminal proceedings on the basis of the same facts, without ruling on the criminal guilt of the person concerned – Infringement of the right to the presumption of innocence – None

   (see paragraphs 120, 121)

6. Officials – Staff of the European Central Bank – Disciplinary measures – Proceedings – Disciplinary Committee – Obligation to ascertain whether the information available to it is sufficient – Legality – Judicial review – Limits

   (European Central Bank Staff Rules, Art. 8.3.14)

   (see paragraphs 139, 140)

7. Actions brought by officials – Pleas in law – Plea in law alleging infringement of the rights of the defence – Plea in law which in fact relates to the failure to obtain the desired result by the exercise of the rights of the defence – Rejection

   (see paragraph 156)

8. Officials – Staff of the European Central Bank – Disciplinary measures – Penalty – Dismissal – Judicial review – Scope

   (Charter of Fundamental Rights of the European Union, Art. 47)

   (see paragraphs 160, 161, 195-197)

9. Officials – Staff of the European Central Bank – Disciplinary measures – Proceedings – Conduct – Time limits – Non-mandatory nature – Compliance with a reasonable time limit – Criteria for assessment

   (European Central Bank Staff Rules, Arts 8.3.15 to 8.3.17)

   (see paragraphs 177, 178)

10. Officials – Staff of the European Central Bank – Disciplinary measures – Proceedings – Conduct – Time limits – Lack of expediency – Breach of the duty to have regard for the welfare of officials – Consequences – Annulment of the penalty – None

    (European Central Bank Staff Rules, Arts 8.3.15 to 8.3.17)

    (see paragraph 180)

11. Officials – Staff of the European Central Bank – Disciplinary measures – Penalty – Obligation to state reasons – Scope

    (see paragraph 183)

12. Officials – Staff of the European Central Bank – Disciplinary measures – Penalty – Aggravating circumstance – Refusal to repay the sum unduly received giving rise to the disciplinary proceedings – Included – Loss of the relationship of trust – Included – Need for repeated misconduct – None

    (Conditions of Employment for Staff of the European Central Bank, Art. 45, 8th indent)

    (see paragraphs 204-206, 211, 212, 224)

13. Officials – Staff of the European Central Bank – Disciplinary measures – Penalty – Aggravating circumstance – Concept

    (Conditions of Employment for Staff of the European Central Bank, Art. 45, 8th indent)

    (see paragraph 209)

14. Officials – Staff of the European Central Bank – Disciplinary measures – Penalty – Extenuating circumstance – Having a low grade and level of seniority – Disciplinary proceedings concerning the receipt of sums not due – Not included

    (Conditions of Employment for Staff of the European Central Bank, Art. 45, 5th indent)

    (see paragraph 216)

15. Officials – Staff of the European Central Bank – Disciplinary measures – Penalty – Aggravating circumstance – Conduct such as to affect the reputation and the credibility of the Bank as a financial institution – Included – Need to demonstrate knowledge of the facts on the part of persons outside the institution – None

    (Conditions of Employment for Staff of the European Central Bank, Art. 45, 2nd indent)

    (see paragraph 219)

16. Officials – Staff of the European Central Bank – Disciplinary measures – Penalty – Aggravating circumstance – Conduct contrary to the financial interests of the Bank by a member of staff who was supposed to protect those interests – Included

    (Conditions of Employment for Staff of the European Central Bank, Art. 45, 2nd indent)

    (see paragraph 220)

17. Officials – Staff of the European Central Bank – Disciplinary measures – Penalty – Extenuating circumstance – Duration of the disciplinary proceedings – Not included

    (Conditions of Employment for Staff of the European Central Bank, Art. 45)

    (see paragraph 227)

Résumé

The applicant, DI, a member of staff of the European Central Bank (‘the Bank’), became the subject of disciplinary proceedings, initiated in November 2016, concerning claims for reimbursement of certain medical and learning support expenses which had allegedly been unlawfully submitted. At the same time, DI became the subject of three sets of criminal proceedings initiated by the German Public Prosecutor’s Office on the basis of the same facts.

At the end of the disciplinary proceedings, after no further action was taken in one set of criminal proceedings, and after the second set resulted in acquittal, but before a ruling was given in the third set, the Bank decided to dismiss DI without notice, having concluded that he was guilty, first, of having breached his duty of loyalty to the institution, second, of having failed to respect the Bank’s common values and to conduct himself in his professional and private life in accordance with the Bank’s statute, third, of having continuously breached his duty to preserve the institution’s financial interests and, fourth, of having put the Bank’s reputation at risk.

After no further action was taken in the third set of criminal proceedings, DI requested the Bank to reconsider its dismissal decision. Following the Bank’s rejection of that request, DI brought an action before the General Court, seeking annulment of the dismissal decision and of the decision refusing to reopen the disciplinary proceedings.

The Court, sitting in extended composition, dismisses the action and provides further details regarding the point from which the limitation period for disciplinary proceedings starts to run, autonomy in the classification of a form of conduct as a disciplinary offence as compared with the classification of that form of conduct by the criminal court, the application of the presumption of innocence in that area, and the intensity of the judicial review.

Findings of the Court

First of all, regarding the limitation period for disciplinary proceedings, the Court recalls that the function of that period is to ensure legal certainty and that that fundamental requirement prevents the administration from indefinitely delaying the exercise of its powers. Accordingly, in the presence of provisions laying down limitation periods for the initiation of disciplinary proceedings, there is no room for any consideration relating to a reasonable period. In disciplinary proceedings, the time limits relating to the conduct of those proceedings are not mandatory, but the time limits concerning the initiation of those proceedings are.

Regarding the concept of discovery of the facts which causes the limitation period to begin to run, the Court notes that that concept cannot require exact and detailed knowledge of all the facts constituting a disciplinary offence. Furthermore, it does not require the facts to be definitively established, since their discovery refers to knowledge of those facts, and not to them being proved. Therefore, discovery of the facts occurs when the facts known are sufficient to enable a prima facie assessment of whether there has been a breach of professional duties, which in turn depends on the obligations potentially infringed and on the requirements inherent to each of them. The Court infers from this, in the present case, that the Bank failed to have regard to the rules on limitation periods in respect of some of the forms of misconduct imputed to the applicant. This, however, does not affect the lawfulness of the dismissal decision.

Next, as regards the adage according to which ‘disciplinary proceedings arising out of a criminal offence must await the outcome of the criminal trial’, the Court observes that, although Article 25 of Annex IX to the Staff Regulations of Officials of the European Union classifies it as a principle, that adage has not been binding on the Bank since the abolition, as from 1 January 2009, of a similar provision which appeared in the conditions of employment for staff of the Bank (‘the conditions of employment’).

Subsequently, in relation to the presumption of innocence, the Court recalls, first, that that presumption is not limited to a procedural guarantee in criminal matters, but that its scope extends beyond those proceedings, second, that infringement of the presumption of innocence can emanate from any public authority and, third, that that infringement may result from statements or decisions which reflect the sentiment that the person is guilty, which encourage the public to believe in his or her guilt or which prejudge the assessment of the facts in criminal terms. The Court emphasises in that regard the importance of the choice of words used by public authorities. It is important, in this respect, to take into account the true meaning of the statements in question, not their literal form, and the particular circumstances in which they were formulated. In the present case, the Court specifies that, in its dismissal decision, the Bank 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 with regard to the offence of fraud which was the subject of the criminal proceedings 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. Accordingly, the Court concludes that the Bank did not infringe DI’s right to the presumption of innocence by adopting the dismissal decision before it became aware of the outcome of the judicial proceedings concerning him.

Moreover, the Court holds that the refusal to reopen the proceedings did not infringe the applicant’s right to the presumption of innocence in so far as the grounds relied on in that regard also do not include any finding that the applicant was guilty under criminal law.

The Court also recalls that the effectiveness of judicial review requires the EU judicature to carry out a full review of the accuracy of the facts and the proper application of the relevant rules of law. Similarly, the EU judicature also carries out a full review of the classification of the facts in the light of objective legal concepts. In particular, it reviews whether or not a fact falls within the legal concepts of aggravating or extenuating circumstances. Finally, although the conditions of employment do not specify any fixed relationship between the disciplinary penalties listed therein and the various types of misconduct on the part of members of staff, and do not state the extent to which aggravating or extenuating circumstances are to be taken into account in the choice of penalty, compliance with Article 47 of the Charter of Fundamental Rights of the European Union presupposes that a ‘penalty’ imposed by an administrative authority which does not itself satisfy the conditions laid down in that article must be subject to the subsequent review of a judicial body which has the power to assess fully the proportionality between the misconduct and the penalty. The EU judicature ascertains, inter alia, whether the weight attached by the disciplinary authority to the aggravating and extenuating circumstances is proportionate. In that regard, the Court recalls that an aggravating circumstance is not a constituent element of an offence, the establishment of which requires proof of material elements and, as the case may be, non-material elements. Therefore, it does not serve to characterise the offence as such, but it affects the level of the penalty once the offence has been established, in order to take account of the seriousness of the facts as a whole and to ensure, in the light of all those facts, the punitive and deterrent effect of the penalty. The Court specifies that the loss of the relationship of trust is not a constituent element of the disciplinary fault consisting in a lack of loyalty, but an aggravating circumstance due to the particularly damaging and serious degree of that lack of loyalty, in particular if the official or other member of staff shows an absolute lack of respect towards the institution.