JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Third Chamber)

26 June 2013

Case F‑106/11

BM

v

European Central Bank (ECB)

(Civil service — ECB Staff — Disciplinary proceedings — Disciplinary penalty — Written reprimand)

Application:      brought 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 BM, a member of staff at the European Central Bank (ECB), seeks, first, annulment of the decision of the Deputy Director General of the Human Resources, Budget and Organisation Directorate General (DG) (‘the Human Resources DG’) of 15 April 2011 imposing a written reprimand on him and, secondly, payment of the sum of EUR 10 000 by way of compensation for the non-material harm he suffered.

Held:      The action is dismissed. BM is to bear his own costs and to pay the costs incurred by the European Central Bank.

Summary

1.      Officials — European Central Bank staff — Disciplinary measures — Obligation to conduct an inquiry before initiating disciplinary proceedings — None

(Conditions of Employment for Staff of the European Central Bank, Art. 45; European Central Bank Staff Rules, Art. 8.3.2; Administrative Circular No 1/2006 of the Executive Board of the European Central Bank)

2.      Officials — European Central Bank staff — Recovery of undue payments — Reliance on good faith by a staff member who has failed to declare allowances of the same nature as EU family allowances — Not permissible

(Conditions of Employment for Staff of the European Central Bank, Art. 21; European Central Bank Staff Rules, Arts 0.4.3 and 3.3.2)

3.      Officials — European Central Bank staff — Disciplinary measures — Penalty — Principle of proportionality — Definition — Discretion of the competent authority — Judicial review — Limits

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

1.      No applicable provision, either in the Conditions of Employment for Staff of the European Central Bank or in the Staff Rules, or in the Administrative Circular of the Bank’s Executive Board on internal administrative inquiries, provides that the initiation of disciplinary proceedings must be preceded by an administrative inquiry within the meaning of that circular.

(see para. 31)

2.      A member of staff of the European Central Bank who has breached his professional duty by failing to declare to the latter the receipt of allowances of the same nature as the family allowances paid by the Bank cannot rely on his good faith to avoid a disciplinary penalty. In any event, a member of staff exercising ordinary care is deemed to know the rules governing his remuneration.

(see paras 45, 63)

See:

1 February 1996, T‑122/95 Chabert v Commission, para. 32; 1 April 2004, T‑312/02 Gussetti v Commission, para. 106

3.      With regard to staff of the European Central Bank, the application of the principle of proportionality in disciplinary matters has two aspects. First, it is for the competent authority to choose the appropriate penalty where the truth of the matters alleged against the staff member is established, and it is not open to the European Union judicature to criticise that choice unless the penalty imposed is disproportionate to the matters alleged against the person concerned. Second, the penalty to be imposed is to be determined on the basis of an overall assessment by that authority of all the concrete facts and matters appertaining to each individual case, since, as regards members of staff at the European Central Bank, its Conditions of Employment do not specify any fixed relationship between the disciplinary penalties listed by them and the various types of misconduct on the part 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. Therefore, the European Union Court is competent to examine all the issues of fact and of law relevant for the purposes of the dispute before it, which implies, in the case of a disciplinary penalty, that it has, inter alia, the power to assess the proportionality between the misconduct and the penalty. On the basis of those principles, the review by the Court of the European Union is therefore restricted to assessing whether the penalty imposed is disproportionate in relation to the acts of which the member of staff is accused and whether the Bank has weighed up in an appropriate manner the aggravating and extenuating circumstances

(see paras 51-52)

See:

15 May 2012, T‑184/11 P Nijs v Court of Auditors, para. 85