JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

18 September 2014

Case F‑26/12

Maria Concetta Cerafogli

v

European Central Bank (ECB)

(Civil service — ECB staff — Access of ECB staff to documents connected with their employment relationship — Rules applicable to requests from ECB staff — Pre-litigation procedure — Rule of correspondence — Plea of illegality raised for the first time in the action — Admissibility — Right to effective judicial protection — Consultation of the Staff Committee for the purpose of adopting rules applicable to requests from ECB staff for access to documents connected with their employment relationship)

Application:      under Article 36.2 of the Protocol on the Statute of the European System of Central Banks and of the European Central Bank, annexed to the TEU and the TFEU, in which Ms Cerafogli seeks, in essence, annulment of the decision of the European Central Bank (ECB) refusing to grant her access to certain documents and compensation for the non-material damage which she claims to have suffered as a result of that decision.

Held:      The decision of 21 June 2011 whereby the Deputy Director-General of the Directorate General for Human Resources, Budget and Organisation of the European Central Bank partially rejected the request for access to certain documents submitted by Ms Cerafogli on 20 May 2011 is annulled. The European Central Bank is ordered to pay Ms Cerafogli EUR 1 000. The remainder of the action is dismissed. The European Central Bank is to bear its own costs and is ordered to pay the costs incurred by Ms Cerafogli.

Summary

1.      Actions brought by officials — Staff of the European Central Bank — Special appeal — Correspondence between the special appeal and the application — Same subject-matter and legal basis — Plea of illegality raised for the first time in the action — Admissibility

(Charter of Fundamental Rights of the European Union, Art. 47; Staff Regulations, Arts 90 and 91; Conditions of Employment for Staff of the European Central Bank, para. 41; European Central Bank Staff Rules, Art. 8.1)

2.      Officials — Staff of the European Central Bank — Representation — Staff Committee — Mandatory consultation — Scope — Rules applicable to requests from staff for access to documents connected with their employment relationship — Included

(Conditions of Employment for Staff of the European Central Bank, paras 48 and 49)

1.      Paragraph 41 of the Conditions of Employment for Staff of the European Central Bank and Article 8.1 of the European Central Bank Staff Rules state that ECB staff may bring legal proceedings only after exhausting the pre-litigation procedure, which is in two stages: a request for pre-litigation review then a preliminary complaint.

In line with what has been held with regard to Article 91 of the Staff Regulations, a rule of correspondence between the complaint and the application which follows it requires a plea raised before the Courts of the European Union to have been raised during the pre-litigation procedure, so that the administration has already been made aware of the criticisms levelled by the person concerned against the contested decision, failing which the application will be inadmissible.

However, there are arguments connected with the purpose of the pre-litigation procedure, the nature of a plea of illegality and the principle of effective judicial protection which are against the idea that a plea of illegality raised for the first time in an action should be declared inadmissible solely on the ground that it has not been raised in the complaint preceding that action.

(see paras 30, 31, 39, 54)

See:

judgment in Commission v Moschonaki, T‑476/11 P, EU:T:2013:557, para. 71

judgment in Cerafogli v ECB, F‑43/10, EU:F:2012:184, para. 61, on appeal before the General Court of the European Union, Case T‑114/13 P

2.      Paragraph 49 of the Conditions of Employment for Staff of the European Central Bank imposes an obligation on the administration to consult the Staff Committee before adopting any act of general application concerning either the service rules themselves or matters relating to those rules and connected with any of the areas referred to in paragraph 48 of those Conditions of Employment.

That consultation obligation only amounts to a right of the Staff Committee to be heard. It is therefore a modest form of participation in a decision-making process, since it does not involve any obligation for the administration to act upon the observations made by the Staff Committee in the course of the consultation. That being so, unless it is to undermine the effectiveness of the obligation to consult, the administration must comply fully with that obligation whenever consultation of the Staff Committee is liable to have an influence on the substance of the measure to be adopted.

Moreover, the scope of the obligation to consult the Staff Committee must be assessed in the light of its objectives. First, that consultation is intended to afford all members of staff, through that committee (as the representative of their shared interests), the opportunity to be heard prior to the adoption or amendment of acts of general application which concern them. Second, compliance with that obligation is in the interests both of the various members of staff and of the administration in that it serves to avoid the need for each member of staff to raise, by way of an individual administrative procedure, the existence of possible errors. By the same token, such consultation, being such as to prevent the submission of a series of individual applications pursuing the same grievance, also serves the principle of sound administration.

The rules applicable to requests from ECB staff to have access to internal documents connected with their employment relationship form part of the staff regulations referred to in paragraphs 48 and 49 of the Conditions of Employment and thus fall within the scope of those provisions. Consequently, the Staff Committee must be heard before such rules are adopted.

(see paras 60-64)

See:

judgment in Cerafogli and Poloni v ECB, T‑63/02, EU:T:2003:308, paras 21, 22 and 24

judgments in Cerafogli v ECB, EU:F:2012:184, paras 47 and 49; and Andres and Others v ECB, F‑15/10, EU:F:2013:194, para. 191