JUDGMENT OF THE GENERAL COURT (First Chamber)
18 October 2023 (*)
(Civil service – ECB staff – Complaint of discrimination and psychological harassment – Internal administrative inquiry – Equivalent compliance with a judgment of the General Court – Article 266 TFEU – Letter of apology – Existence of a duty of confidentiality – Liability – Non-material damage)
In Case T‑162/21,
BZ, represented by H. Tettenborn, lawyer,
applicant,
v
European Central Bank (ECB), represented by B. Ehlers and F. von Lindeiner, acting as Agents, and by B. Wägenbaur, lawyer,
defendant,
THE GENERAL COURT (First Chamber),
composed, at the time of the deliberations, of H. Kanninen (Rapporteur), President, M. Jaeger and N. Półtorak, Judges,
Registrar: V. Di Bucci,
having regard to the written part of the procedure, in particular the decision of 21 July 2022 rejecting the application to join Cases T‑162/21 and T‑631/21,
having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,
gives the following
Judgment
1 By her action based on Article 270 TFEU and on Article 50a of the Statute of the Court of Justice of the European Union, the applicant, BZ, seeks (i) the annulment in part of the decision of the European Central Bank (ECB) of 17 November 2020 (‘the decision of 17 November 2020’), in so far as it fixes a compensation payment in the amount of EUR 50 000, and of the letter of the ECB of 12 January 2021 (‘the letter of 12 January 2021’) relating to the existence of a duty of confidentiality, and (ii) compensation for the non-material damage which she allegedly suffered as a result of those measures.
I. Background to the dispute
2 The applicant entered the service of the ECB in [confidential]. (1)
3 On 8 April 2008, the applicant lodged a request for assistance on the basis of Article 41 of the Conditions of Employment for Staff of the ECB adopted by Decision 1999/330/EC of the ECB of 9 June 1998 on the adoption of the Conditions of Employment for Staff of the ECB, as amended on 31 March 1999 (ECB/1998/4) (OJ 1999 L 125, p. 32). That request sought to challenge, first, the conduct of her line managers, which she claimed constituted discrimination and psychological harassment against her and, second, the infringement by the ECB of international and EU rules of employment law.
4 By decision of 24 November 2009, the Executive Board of the ECB concluded the administrative inquiry on the ground that the claims on which the request for assistance was based were not substantiated (‘the decision of 24 November 2009’).
5 On 29 January 2010, the applicant brought a special appeal before the President of the ECB against the decision of 24 November 2009, pursuant to Article 41 of the Conditions of Employment for Staff of the ECB and to Article 8.1.6 of the ECB Staff Rules.
6 By decision of 24 March 2010, the Executive Board of the ECB rejected the special appeal brought by the applicant (‘the decision of 24 March 2010’).
7 On 4 June 2010, the applicant brought an action by which she claimed that the European Union Civil Service Tribunal should (i) annul the decision of 24 November 2009 and, ‘if necessary’, that of 24 March 2010, and (ii) order the ECB to pay her compensation for the non-material and material damage suffered. The applicant assessed that damage ex aequo et bono at EUR 50 000 and EUR 15 000, respectively.
8 By judgment of 12 December 2012, BZ v ECB (F‑43/10, EU:F:2012:184), the Civil Service Tribunal dismissed the applicant’s action. The applicant lodged an appeal against that judgment pursuant to Article 9 of Annex I to the Statute of the Court of Justice of the European Union.
9 By judgment of 23 September 2015, BZ v ECB (T‑114/13 P, EU:T:2015:678), the General Court set aside the judgment of 12 December 2012, BZ v ECB (F‑43/10, EU:F:2012:184), and referred the case back to the Civil Service Tribunal pursuant to Article 13(1) of Annex I to the Statute of the Court of Justice of the European Union.
10 On 1 September 2016, the case was transferred to the General Court pursuant to Article 3 of Regulation (EU, Euratom) 2016/1192 of the European Parliament and of the Council of 6 July 2016 on the transfer to the General Court of jurisdiction at first instance in disputes between the European Union and its servants (OJ 2016 L 200, p. 137).
11 By judgment of 28 May 2020, BZ v ECB (T‑483/16 RENV, not published, EU:T:2020:225; ‘the annulling judgment’), the Court annulled the decision of 24 November 2009 and the decision of 24 March 2010. The Court also ordered the ECB to pay to the applicant the sum of EUR 20 000 by way of damages, dismissed the action as to the remainder and ordered the ECB to bear two thirds of the costs which the applicant had incurred in the sets of proceedings in the cases registered under numbers F‑43/10, T‑114/13 P and T‑483/16 RENV.
12 By letter of 30 June 2020, the applicant’s lawyer asked the ECB to specify what measures it intended to take to comply with the annulling judgment. She stated that, in the event of ‘practical difficulties in the … implementation’ of that judgment, her client was ‘open to a dialogue to find a solution in this regard’.
13 On 14 July 2020, the applicant’s lawyer and the ECB’s external counsel spoke by telephone for one hour and a half regarding compliance with the annulling judgment. They noted that the opening of a new administrative inquiry risked creating many difficulties for the ECB and that an ‘implementation by equivalen[ce]’ could therefore be regarded as an acceptable solution.
14 In September 2020, the ECB paid to the applicant the sum of EUR 20 000 referred to in paragraph 11 above, in accordance with point 2 of the operative part of the annulling judgment.
15 By letter of 27 October 2020, the applicant’s lawyer requested information from the ECB regarding the measures taken by the latter to comply with the judgment. She reminded the ECB that its external counsel had been given a mandate to find a solution to practical difficulties relating to the reopening of the administrative inquiry. She added that, despite several exchanges during the preceding months, that counsel was not able to confirm to her that the ECB had decided not to open a new inquiry and, accordingly, to open a dialogue for the purposes of finding a solution.
16 On 29 October 2020, in reply to that letter, the ECB informed the applicant that, in the light of the complexity of the annulling judgment, several possibilities for giving effect to it had been assessed. It stated that the Executive Board of the ECB was to take its decision in November of that year.
17 During its meeting of 17 November 2020, the Executive Board instructed the ECB’s Directorate-General for Human Resources to implement the following measures for the purposes of complying with the annulling judgment:
– the sending of a letter by which the ECB would acknowledge that it made mistakes, express its apologies to the applicant and thank her for her work at the ECB;
– payment of compensation in the amount of EUR 50 000.
18 By letter of 25 November 2020, the applicant requested information from the ECB regarding the state of progress in complying with the annulling judgment (‘the letter of 25 November 2020’).
19 On the same date, the ECB’s Directorate-General for Human Resources sent the applicant a letter which was worded as follows:
‘During its meeting on 17 November 2020 … the Executive Board … decided that the implementation of the [annulling] judgment should consist of: 1. a letter to [the applicant] which (i) acknowledges that a number of errors, including an infringement of the ECB Dignity at Work Policy, were made to her detriment, (ii) expresses the institution’s apologies for the errors made by the inquiry panel and for the destruction of the original inquiry file, and (iii) thanks her for her years of service and her work for the ECB; 2. a payment ex aequo et bono of EUR 50 000 to compensate [the applicant] for the damage caused by the errors acknowledged in the letter mentioned in paragraph 1 and in consideration of the fact that it cannot be excluded, but nor can it be confirmed, that the inquiry may have led to a different finding had the errors not been made.’
20 On 30 November 2020, the applicant communicated to the ECB her bank details and the address at which she wished to receive the letter of apology. She added that that information was provided without any ‘detrimental recognition’.
21 In December 2020, the ECB paid to the applicant a sum corresponding to two thirds of the costs which she had incurred in the sets of proceedings in the cases registered under numbers F‑43/10, T‑114/13 P and T‑483/16 RENV, in accordance with point 4 of the operative part of the annulling judgment.
22 By letter of 11 December 2020, the applicant requested information from the ECB regarding compliance with the annulling judgment. She also requested that the ECB grant her access to the decision of 17 November 2020 in order to be able to ‘properly understand what the Executive Board [had] decided’.
23 By letter of 15 December 2020, the ECB’s Directorate-General for Human Resources stated that, on 25 November 2020, it had informed the applicant of the ‘final internal decision’ taken by the Executive Board during its meeting of 17 November 2020.
24 By letter of 18 December 2020, the Directorate-General for Human Resources stated that the decision of 17 November 2020 constituted a purely internal decision which was not addressed to the applicant and which was not accessible by her. By the same letter, the ECB provided the applicant with a document dated 15 December 2020, signed by the Secretary to the ECB Decision-making Bodies, which certifies the content of the decision of 17 November 2020 (‘the certified document’).
25 On 12 January 2021, the ECB sent the applicant a letter marked ‘ECB-Confidential Personal’. In that letter, the ECB acknowledged the errors which it had made, expressed apologies and thanked the applicant for her years of service at the ECB. It also stated that, given the ‘difficulties that would be involved in carrying out a new administrative inquiry so many years later’, the Executive Board had decided to compensate the applicant ex aequo et bono for the damage which she had suffered.
26 By letter of 15 January 2021, the applicant made a confirmatory application to the ECB seeking access to the decision of 17 November 2020, in accordance with Article 7(2) of Decision 2004/258/EC of the ECB of 4 March 2004 on public access to ECB documents (ECB/2004/3) (OJ 2004 L 80, p. 42), as amended by Decisions 2011/342/EU of the ECB of 9 May 2011 (ECB/2011/6) (OJ 2011 L 158, p. 37) and (EU) 2015/529 of the ECB of 21 January 2015 (ECB/2015/1) (OJ 2015 L 84, p. 64). The applicant also invoked her right to access the decision of 17 November 2020 under Article 13 of Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ 2001 L 8, p. 1).
27 On 18 January 2021, the sum of EUR 50 000 was transferred to the applicant’s bank account.
28 On 21 January 2021, the applicant submitted a special appeal against the decision of 17 November 2020.
29 On 15 February 2021, the ECB rejected the application for access referred to in paragraph 26 above in so far as it was based on Article 7(2) of Decision 2004/258. By contrast, the ECB granted the abovementioned application in so far as it was based on Regulation No 45/2001 and communicated to the applicant an extract of a memorandum to the Executive Board, dated 12 November 2020.
30 By letter of 18 February 2021, the applicant, in essence, reiterated her request for access to the decision of 17 November 2020.
31 By letter of 24 February 2021, the ECB explained why it considered that the applicant had already, by means of the certified document, obtained ‘privileged access’ to the certified excerpts of the decision of 17 November 2020.
32 By decision of 16 March 2021, the ECB rejected the special appeal of 21 January 2021 (‘the decision of 16 March 2021’). The applicant was informed of that decision by letter of 17 March 2021.
II. Forms of order sought
33 The applicant claims that the Court should:
– annul the ‘decision of the Executive Board dated 17 November 2020 and 12 January 2021’, in so far as it ‘fixes an (insufficient) compensation of only EUR 50 000 and imposes a duty of confidentiality [on her] … concerning the ECB letter of 12 January 2021’;
– order the ECB to pay compensation of EUR 30 000 for the non-material damage suffered by the applicant as a result of the failure of the ECB adequately to comply with the annulling judgment;
– ‘grant the execution of the Measures of Procedure by requesting the ECB to produce the full … decision [of the Executive Board of 17 November 2020] … or at least its essential parts and reasons’;
– order the ECB to pay the costs.
34 The ECB contends, in essence, that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
III. Law
A. Subject matter of the dispute
35 The applicant seeks the annulment in part of the decision of 17 November 2020 and of the letter of 12 January 2021. By contrast, as the ECB correctly states in the defence, the applicant does not formally seek the annulment of the decision of 16 March 2021.
36 Rather, the applicant argues that the decision of 16 March 2021 is a new decision, the annulment of which she seeks in a separate action, lodged at the Registry of the Court on 27 September 2021 and registered under case number T‑631/21.
37 In that respect, it should be recalled that a special appeal and its rejection constitute an integral part of a complex procedure. An action before the EU Courts, even if formally directed against the rejection of a special appeal, has the effect of bringing before the EU Courts the act adversely affecting the person concerned against which that special appeal was brought, except where the scope of the rejection of the special appeal differs from that of the measure against which the appeal was brought (see, to that effect, the annulling judgment, paragraphs 70 and 75).
38 A decision explicitly rejecting a special appeal may, in the light of its content, not be confirmatory of the measure contested by an applicant. That is the case where the decision rejecting the special appeal contains a re-examination of an applicant’s situation in the light of new elements of law or of fact, or where it changes or adds to the original decision. In such circumstances, the rejection of the special appeal constitutes a measure subject to review by the EU Courts, which will take it into consideration when assessing the legality of the contested measure or will even regard it as an act adversely affecting the person concerned replacing the contested measure (see, to that effect, the annulling judgment, paragraphs 71 and 75).
39 Conversely, in view of the evolving nature of the pre-litigation procedure, a decision rejecting a special appeal which contains only further particulars and thus merely sets out, in a detailed manner, the grounds for confirming the earlier measure does not constitute an act adversely affecting the person concerned (see, by analogy, judgments of 9 June 2021, Hill Mansilla v Commission, T‑575/19, not published, EU:T:2021:324, paragraph 19 and the case-law cited, and of 6 April 2022, MF v eu-LISA, T‑568/20, not published, EU:T:2022:223, paragraph 23 and the case-law cited).
40 In the present case, it must be observed that the decision of 16 March 2021 adopts a position on the legality of the two measures of which the applicant seeks the partial annulment, namely the decision of 17 November 2020 and the letter of 12 January 2021 in so far as it allegedly imposed a ‘duty of confidentiality’ on her.
41 In order to examine the application for annulment, it is necessary to assess the relationship between, first, the decision of 16 March 2021 and the decision of 17 November 2020, and, second, the decision of 16 March 2021 and the letter of 12 January 2021.
1. The relationship between the decision of 16 March 2021 and the decision of 17 November 2020
42 As a preliminary point, it should be noted that the parties disagree as to the content of the decision of 17 November 2020.
43 The applicant submits that the certified document, which was communicated to her by letter of 18 December 2020, does not include several essential elements contained in the letter of the Directorate-General for Human Resources of 25 November 2020 and in the letter of 12 January 2021. She argues that those elements include the decision not to reopen the administrative inquiry and the fact that the compensation granted to the applicant covers all damage suffered and must be defined as ‘ex aequo et bono’.
44 The ECB contends that the letter of the Directorate-General for Human Resources of 25 November 2020 and the letter of 12 January 2021 did not amend the decision of 17 November 2020, but merely expressed what was inherent in that decision.
45 The ECB adds that the letter of 12 January 2021 is not a challengeable act. It maintains that it is erroneous to consider that that letter imposes a duty of confidentiality on the applicant and thereby adversely affects her rights. According to the ECB, to claim the contrary amounts to disregarding the decision of 16 March 2021, by which the applicant was permitted to share the existence and content of the abovementioned letter with third parties inside and outside the ECB for the purpose of restoring her reputation, professional integrity and psychological well-being.
46 In that regard, it should be noted that, by the letter of 25 November 2020, the ECB communicated to the applicant the grounds for the decision of 17 November 2020. It is apparent from that letter that, given the ‘practical difficulties that would be involved in carrying out a new administrative inquiry at this stage’, the Executive Board decided to address a letter of apology to the applicant and to grant her a ‘payment ex aequo et bono of EUR 50 000’.
47 On 18 December 2020, the ECB sent the applicant a letter, attached to which was the certified document which ‘has been signed by the Secretary to the ECB Decision Making Bodies … and certifies the content of the decision taken by the Executive Board at its meeting of 17 November 2020’. It is true that, as the applicant submits, that document does not contain the phrase ‘ex aequo et bono’, nor does it expressly state that the ECB did not intend to reopen the administrative inquiry or that the compensation granted to the applicant covered all damage suffered. However, it must be observed, as the ECB contends, that those elements are implicit in the decision of 17 November 2020. The letter of 25 November 2020 from the Directorate-General for Human Resources, which was responsible for implementing the decision of 17 November 2020, simply makes the abovementioned elements explicit. First, if the Executive Board decided to comply, in an equivalent manner, with the annulling judgment, by means of a letter of apology and payment of compensation, that was necessarily because it considered that there were major obstacles to a reopening of the administrative inquiry. In view of the discussions which had taken place between her lawyer and the ECB’s external counsel in July 2020, the applicant, moreover, could not have been unaware of that fact. Second, as regards an amount intended to give equivalent effect to the annulling judgment without referring to one or more specific forms of damage, the only view that could be taken was that the compensation was flat-rate, assessed ex aequo et bono.
48 The decision of 16 March 2021 supports that interpretation. Indeed, in paragraphs 1.19, 3.4 and 3.41 of that decision, the Executive Board confirms that it decided, on 17 November 2020, that the compensation granted to the applicant would be calculated ex aequo et bono, given the practical difficulties that would be involved in carrying out a new administrative inquiry so many years later.
49 Consequently, there were no substantial differences between the certified document and the letter of the Directorate-General for Human Resources of 25 November 2020 and that of 12 January 2021. The applicant is therefore not justified in claiming that those two letters do not adequately reflect the content of the decision of 17 November 2020.
50 It is in the light of those considerations that the relationship between the decision of 16 March 2021 and the decision of 17 November 2020 must be examined.
51 It is true that, as the applicant maintains, paragraphs 3.1 and 3.7 of the decision of 16 March 2021 state that that decision ‘re-examines’ the adequacy of the measures taken to give effect to the annulling judgment.
52 Nonetheless, it is clear from the wording of the decision of 16 March 2021 that that decision does not contain any re-examination of the applicant’s situation in the light of new elements of law or of fact. Indeed, as the ECB correctly contends, that decision merely elaborates on the grounds on which the decision of 17 November 2020 was already based.
53 Thus, in the first part of the decision of 16 March 2021, the ECB recalled the facts. In that context, in paragraphs 1.14 to 1.20, it explained why it had, in the decision of 17 November 2020, opted for the approach to compliance described in paragraph 17 above. In particular, it described the practical difficulties which had been the reason for not carrying out a new administrative inquiry.
54 In the second part of the decision of 16 March 2021, the ECB examined the admissibility of the special appeal of 21 January 2021.
55 In the third part, in paragraphs 3.3 and 3.4, the ECB reiterated the practical difficulties which had been the reason for not carrying out a new administrative inquiry. In paragraphs 3.5 and 3.6, it stated that the applicant did not challenge the approach to compliance described in paragraph 17 above. According to the ECB, the applicant challenged, inter alia, the amount of the financial compensation paid. In paragraphs 3.14 to 3.45, it examined the various grounds put forward by the applicant in her special appeal of 21 January 2021 for the purposes of demonstrating that the sum of EUR 50 000 which the ECB had granted to her on 17 November 2020 was insufficient.
56 It follows that the decision of 16 March 2021 is identical in scope to the decision of 17 November 2020 and is therefore confirmatory of it.
57 The legality of the decision of 17 November 2020 must nonetheless be assessed in the light of the statement of reasons given in the decision of 16 March 2021. That statement of reasons is deemed to be the same as that for the decision of 17 November 2020 (see, to that effect, judgments of 30 April 2019, Wattiau v Parliament, T‑737/17, EU:T:2019:273, paragraph 43, and of 26 March 2020, Teeäär v ECB, T‑547/18, EU:T:2020:119, paragraph 25).
2. The relationship between the decision of 16 March 2021 and the letter of 12 January 2021
58 It should be noted that the letter of 12 January 2021 bears the marking ‘ECB-Confidential Personal’. In that letter, however, the ECB failed to specify what obligations that marking entailed for the applicant.
59 In paragraph 3.10 of the decision of 16 March 2021 and in the defence, the ECB stated that ‘no duty of confidentiality [had] been imposed on the [applicant]’. In the defence, the ECB clarified that ‘documents labelled ECB-Confidential … and Personal … [did] not require approval from a manager before they [could] be shared in confidence by the addressee with a third party for the purpose of representing the addressee and safeguarding their rights’.
60 However, it must be observed that that clarification not only contradicts the arguments put forward in the rejoinder, according to which the Executive Board gave the necessary permission to the applicant, but is also at odds with the very existence of the permission to share the existence and content of the letter of 12 January 2021 which the ECB granted to the applicant in the decision of 16 March 2021. There would be no need to grant that permission if, as the ECB contends, approval from a line manager was not required before documents marked ‘ECB-Confidential Personal’ could be shared.
61 It is therefore necessary to determine the scope of the duty of confidentiality stemming from the letter of 12 January 2021 being marked ‘ECB-Confidential Personal’. The ECB made two clarifications in that regard.
62 First, in the defence, the ECB stated that the word ‘Personal’ could be explained by Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ 2018 L 295, p. 39). According to the ECB, that regulation does ‘not preclude the data subject from sharing his/her own personal data’. The ECB thus concluded that that data subject ‘should … [have been] able to decide [herself] to whom to disclose the document, on a need-to-know basis’, which the applicant does not dispute.
63 Second, in paragraph 3.11 of the decision of 16 March 2021, the ECB stated that documents marked ‘ECB-Confidential’ could be shared only following approval from the line manager and on a ‘need-to-know’ basis, for the purposes of fulfilling statutory functions or tasks of the ECB.
64 It follows that, by including the marking ‘ECB-Confidential Personal’ on the letter of 12 January 2021, the ECB intended to prohibit the applicant from sharing that letter without the approval of her line manager. Accordingly, that letter is capable of adversely affecting the applicant.
65 By contrast, in paragraph 3.13 of the decision of 16 March 2021, the ECB permitted the applicant to share the existence and content of that letter with third parties inside and outside the ECB for the purpose of restoring her reputation, her professional integrity and her psychological well-being. In so doing, the ECB partially waived the duty of confidentiality stemming from inclusion of the marking ‘ECB-Confidential Personal’ in the letter of 12 January 2021.
66 It follows that the decision of 16 March 2021 has a content distinct from that of the letter of 12 January 2021.
67 Therefore, it must be concluded that the present action has the effect of bringing before the Court a claim for annulment of the letter of 12 January 2021, as amended by the decision of 16 March 2021.
B. The Court’s jurisdiction to hear the plea of illegality in respect of the decision of 17 November 2020
68 The applicant states that, as a precaution, ‘it is also requested to annul the … decision of 17 November 2020 – in the part fixing the EUR 50 000 compensation – … via a plea of illegality according to Article 277 TFEU via the ECB letter of 12 January 2021’.
69 The ECB did not put forward any arguments on that point.
70 In that regard, it should be noted that Article 277 TFEU enables a party to challenge the applicability of an act of general application, on which the contested individual act is based, but does not confer jurisdiction on the EU Courts to declare an individual act to be inapplicable (judgment of 3 July 2014, Zanjani v Council, T‑155/13, not published, EU:T:2014:605, paragraph 52).
71 The decision of 17 November 2020 is an individual act.
72 It must therefore be held that the present plea of illegality is based on the assertion that an individual act adopted vis-à-vis the applicant is inapplicable.
73 It follows that the Court does not have jurisdiction to hear this plea of illegality.
C. The admissibility of the applicant’s letter of 22 November 2021
74 By letter of 20 October 2021, the Registrar of the Court notified the parties of the close of the written part of the procedure. He also drew their attention to Article 106 of the Rules of Procedure of the General Court, according to which the main parties must submit any request for a hearing within three weeks after service on the parties of notification of the close of the written part of the procedure.
75 By letter of 22 November 2021, the applicant replied that she was not requesting that a hearing be held (‘the letter of 22 November 2021’). She also submitted several pages of observations on the rejoinder.
76 By letter of 13 December 2021, the ECB replied that the letter of 22 November 2021 was, essentially, a reply to the rejoinder. It argues that such a reply is not provided for under the Rules of Procedure.
77 In that regard, it must be stated, as the ECB contends, that the Rules of Procedure do not authorise the applicant to submit written observations on the rejoinder and thereby add documents to the file after the close of the written part of the procedure (see, to that effect, judgment of 1 July 2009, KG Holding and Others v Commission, T‑81/07 to T‑83/07, EU:T:2009:237, paragraph 35).
78 Those observations, moreover, do not contain any new plea in law which would have justified their belated submission under Article 84 of the Rules of Procedure. On the contrary, the abovementioned observations seek to challenge assertions made in the rejoinder and to revisit the background to the dispute, as a supplement to the pleadings already lodged, even though the written part of the procedure is closed.
79 It follows that the observations contained in the letter of 22 November 2021 must be rejected as inadmissible in so far as they concern the rejoinder.
D. The representation of the ECB
80 In paragraph 24 of her letter of 22 November 2021 (see paragraph 75 above), the applicant raised the question whether Mr Bertrand Wägenbaur could ‘[act] as a witness (concerning the written statements/oral communication records/ECB documents) and … [at] the same time as [the] ECB’s lawyer’.
81 The ECB did not take a position on that matter in its reply to the letter of 22 November 2021.
82 The first paragraph of Article 19 of the Statute of the Court of Justice of the European Union, which is applicable to the procedure before the General Court pursuant to the first paragraph of Article 53 of that statute, provides that the institutions of the European Union are to be represented before the Court of Justice of the European Union by an agent appointed for each case, and that that agent may be assisted by an adviser or by a lawyer.
83 Since the ECB is one of those institutions, it is free to have recourse to the assistance of a lawyer (see, to that effect, order of 24 November 2017, DO v AEMF, T‑821/16 DEP, not published, EU:T:2017:857, paragraph 21), which it did in the present case by engaging the services of Mr Wägenbaur.
84 Assuming that such a lawyer must meet the same requirements of independence as a lawyer representing a party other than a Member State or an institution of the European Union, in accordance with the third paragraph of Article 19 of the Statute of the Court of Justice of the European Union, it must be stated that there is nothing in the file to suggest any detrimental effect on Mr Wägenbaur’s capacity to carry out his task while acting in the ECB’s interests to the greatest possible extent, in line with the law and professional rules and codes of conduct.
85 It is true that the applicant maintained that Mr Wägenbaur combined the functions of lawyer and witness. However, it should be noted that the Court did not summon Mr Wägenbaur as a witness under Article 93 of the Rules of Procedure, nor did the ECB request that Mr Wägenbaur be examined as a witness under Article 94 of the Rules of Procedure.
86 At most, it must be stated that the file contains documents which include exchanges between Mr Wägenbaur and the applicant’s previous lawyer. However, it should be noted that those documents relate to exchanges concerning the implementation of the annulling judgment. The mere fact that Mr Wägenbaur represented the ECB in those exchanges is not liable to have any detrimental effect whatsoever on his capacity to carry out his task appropriately in the context of the present proceedings.
87 As regards the references to unidentified ‘written statements/oral communication records/ECB documents’, suffice it to note that they are too vague to enable the Court to exercise its power of review.
88 It follows that the plea of inadmissibility must be rejected, without there being any need to examine whether it is admissible.
E. The request for a measure of procedure seeking the communication of the decision of 17 November 2020
89 The applicant requests, in essence, that the Court adopt a measure of organisation of procedure or a measure of inquiry ordering the ECB to communicate to her the decision of 17 November 2020 or, at least, its essential parts and reasons.
90 The ECB contends that that request is unfounded.
91 In that regard, it should be borne in mind that the General Court is the sole judge of whether the information available to it concerning the cases before it needs to be supplemented (order of 10 June 2010, Thomson Sales Europe v Commission, C‑498/09 P, not published, EU:C:2010:338, paragraph 138) and that it falls to it to assess the relevance of a request for a measure of organisation of procedure or of a request for a measure of inquiry to the subject matter of the dispute and the need to adopt such a measure (see, to that effect, judgment of 24 September 2009, Erste Group Bank and Others v Commission, C‑125/07 P, C‑133/07 P, C‑135/07 P and C‑137/07 P, EU:C:2009:576, paragraph 320).
92 However, it is apparent from paragraphs 46 to 49 above that the applicant’s request is based on an incorrect premiss, namely that the letter of the Directorate-General for Human Resources of 25 November 2020 and the letter of 12 January 2021 did not adequately reflect the content of the decision of 17 November 2020. The abovementioned request must therefore be rejected.
F. Substance
93 The applicant puts forward simultaneously claims for annulment (see paragraphs 94 to 193 below) and a claim for compensation (see paragraphs 194 to 207 below).
1. The claims for annulment
94 The applicant seeks the annulment in part, first, of the decision of 17 November 2020 and, second, of the letter of 12 January 2021.
(a) The application for annulment in part of the decision of 17 November 2020
95 The applicant relies, in essence, on four pleas in law in support of her claim for annulment in part of the decision of 17 November 2020.
96 The first plea alleges infringement of Article 266 TFEU. It consists of three parts, the first alleging a failure of the ECB to remedy the past effects of the decisions of 24 November 2009 and of 24 March 2010, the second alleging a failure to compensate the applicant fairly for all the disadvantages caused to her, and the third alleging a failure to inform her properly of the decision of 17 November 2020.
97 The second plea, in essence, alleges infringement of the principle of transparency and of Article 41 of the Charter of Fundamental Rights of the European Union (‘the Charter’), while the third plea alleges infringement of the duty of care, of ‘staff welfare’ and of Articles 21 and 31 of the Charter. As regards the fourth plea, it alleges infringement of the obligation to state reasons and of Article 41 of the Charter.
98 In that regard, it should be noted that, although the parties determine the subject matter of the dispute, which cannot be modified by the EU Courts, the latter must interpret the pleas in law by reference to their substance rather than their classification and thus characterise the pleas in law and the arguments in the application (see judgment of 5 September 2014, Éditions Odile Jacob v Commission, T‑471/11, EU:T:2014:739, paragraph 51 and the case-law cited).
99 It is apparent from the examination of the substance of the applicant’s written pleadings that the first and second parts of the first plea and the third plea overlap to a large extent, inasmuch as they all concern, in essence, the compliance, by equivalence, with the annulling judgment. It is also apparent from that examination that the third part of the first plea and the second and fourth pleas all refer, in essence, to an infringement of the obligation to state reasons and to a failure of the ECB to inform the applicant properly and adequately of the decision of 17 November 2020 or, at least, of its essential parts.
100 In those circumstances, the Court considers it appropriate to examine (i) the third part of the first plea and the second and fourth pleas together, and (ii) the first and second parts of the first plea and the third plea together.
(1) The third part of the first plea and the second and fourth pleas, alleging, in essence, a failure to ensure proper notification and to state reasons in respect of the decision of 17 November 2020
101 The applicant submits that the ECB infringed Article 266 TFEU, Article 41 of the Charter and the principles of legal certainty and transparency by not properly notifying her of the decision of 17 November 2020. She maintains that the ECB communicated only a short extract of that decision to her and failed to inform her of the rationale for that decision or its essential parts.
102 The applicant maintains that the certified document does not include several essential elements contained in the letter of the Directorate-General for Human Resources of 25 November 2020 and in the letter of 12 January 2021 (see paragraph 43 above). She argues that any element added by the Directorate-General for Human Resources without the approval of the Executive Board is vitiated by a lack of competence.
103 The applicant also submits that the decision of 17 November 2020 is vitiated by a failure to state reasons, since it does not allow her to identify either the grounds on which the compensation was granted or the disadvantages compensated by the Executive Board.
104 The ECB disputes the applicant’s arguments.
105 In that regard, it should be borne in mind that, pursuant to the third subparagraph of Article 297(2) TFEU, a decision which specifies to whom it is addressed is to be notified to that addressee and is to take effect upon such notification.
106 In the present case, it must be stated that the applicant is the only person to whom the measures adopted by the Executive Board through the decision of 17 November 2020 were addressed. Under the third subparagraph of Article 297(2) TFEU, the ECB was therefore required to notify that decision to her.
107 In that regard, it suffices to note that the applicant’s arguments presuppose that there are substantial differences between the measures which the Executive Board took during its meeting of 17 November 2020 and those which the Directorate-General for Human Resources communicated to her by letter of 25 November 2020. However, as is apparent from paragraphs 46 to 49 above, the applicant is not justified in relying on such differences. A fortiori, she is not justified in arguing that the ECB’s Directorate-General for Human Resources exceeded the limits of its competence by amending the decision of 17 November 2020.
108 The argument alleging a failure to ensure proper notification of that decision must therefore be rejected.
109 With regard to the alleged failure to state reasons for the decision of 17 November 2020, it should be noted that, according to settled case-law, the lack of reasons in the contested measure may be supplemented by additional reasoning in the decision rejecting the special appeal (see, to that effect, order of 13 December 2018, Bowles v ECB, T‑447/17, not published, EU:T:2018:993, paragraph 20; see also, by analogy, judgment of 8 December 2021, QB v Commission, T‑71/21, not published, under appeal, EU:T:2021:868, paragraph 30 and the case-law cited).
110 Contrary to what the applicant submits, that case-law also applies to decisions by which an institution implements, like the ECB in this instance, an annulling judgment delivered by the EU Courts.
111 Yet, the applicant does not demonstrate, or even allege, that the decision of 16 March 2021 did not adequately supplement the reasoning of the decision of 17 November 2020. She merely maintains that it would be contrary to the principle of legal certainty to allow the ECB to rectify ex post facto the insufficient identification and quantification of the damage suffered. However, that argument cannot be accepted, otherwise the case-law cited in paragraph 109 above would be rendered meaningless.
112 The applicant is therefore incorrect in alleging a failure to state reasons.
113 The third part of the first plea and the second and fourth pleas must therefore be rejected.
(2) The first and second parts of the first plea and the third plea, alleging infringement of Article 266 TFEU, of the duty of care, of ‘staff welfare’ and of Articles 21 and 31 of the Charter
114 The applicant submits, in essence, that the ECB did not properly comply with the annulling judgment and, in so doing, infringed Article 266 TFEU, the duty of care, ‘staff welfare’ and Articles 21 and 31 of the Charter. She puts forward two complaints in support of her arguments, alleging, first, a failure of the ECB to hear the applicant before adopting the measures to comply with the annulling judgment and, second, that the compensation of EUR 50 000 which was granted to her is inadequate.
(i) The alleged failure of the ECB to hear the applicant as regards the measures to comply with the annulling judgment
115 The applicant submits that she never agreed to the measures to comply with the annulling judgment taken by the ECB in the decision of 17 November 2020. She maintains that the ECB failed to hear her in good time regarding the draft compliance measures, never informed her of those measures prior to their approval and did not engage in any dialogue with her on that matter.
116 According to the applicant, the discussion of 14 July 2020 between her lawyer and the ECB’s external counsel took place before the ECB decided not to reopen the administrative inquiry and, therefore, was purely ‘exploratory’ and informal. She argues that it was also agreed that that discussion could not be used by any of the parties. In support of her arguments, the applicant submits, as Annex C.1 to the reply, a partially redacted version of an email which her lawyer sent to her on 14 July 2020.
117 The ECB disputes the applicant’s arguments and contends that she should provide the Court with the full version of the email submitted as Annex C.1 to the reply.
118 It must be stated that the applicant’s arguments have no basis in law or in fact.
119 In law, it should be borne in mind that, following an annulling judgment, the institution concerned is required to take necessary measures to reverse the effects of the unlawfulness found, in accordance with Article 266 TFEU (see judgment of 30 June 2021, Mélin v Parliament, T‑51/20, not published, EU:T:2021:398, paragraph 69 and the case-law cited). It cannot escape that obligation by pleading the practical difficulties that such measures might entail (judgment of 8 October 1992, Meskens v Parliament, T‑84/91, EU:T:1992:103, paragraph 78).
120 It is only as an alternative, where it encounters major obstacles in complying with an annulling judgment, that, as the ECB contends, the institution concerned may fulfil its obligations by taking a decision capable of providing fair compensation for the detriment to the party concerned resulting from the decision which has been annulled. In that context, the administration may establish a dialogue with that party with a view to reaching an agreement offering him or her fair compensation for the unlawfulness of which he or she was the victim (see judgment of 8 September 2021, QB v ECB, T‑555/20, not published, EU:T:2021:552, paragraph 38 and the case-law cited).
121 As has already been held, that is an option and not an obligation (see, to that effect, judgment of 5 June 2014, Brune v Commission, T‑269/13 P, EU:T:2014:424, paragraph 52).
122 In its letter of 25 November 2020, the ECB referred to the ‘practical difficulties that would be involved in carrying out a new administrative inquiry at this stage’. Similarly, in the letter of 12 January 2021, the ECB referred to the ‘difficulties that would be involved in carrying out a new administrative inquiry so many years later’.
123 In paragraph 3.4 of the decision of 16 March 2021, the ECB stated that ‘practical difficulties within the meaning of the case-law would objectively make it very difficult to redo a new and reliable inquiry that would provide sufficient assurance to the Executive Board, that the allegations of the [applicant] have been fully and properly investigated, and on the basis of which new decisions could be taken to replace the … decisions [of 24 November 2009 and of 24 March 2010]’.
124 In paragraph 3.3 of the decision of 16 March 2021, the ECB set out in detail the difficulties referred to in paragraph 123 above. It thus stated that carrying out a new administrative inquiry would require appointing a new inquiry panel, and that it could not be excluded that that panel would have to carry out further interviews of witnesses in order to remedy the errors identified by the Court. However, it argues, a number of members of the original inquiry panel have left the ECB. The same applies with respect to a number of witnesses. One of those witnesses has even died. According to the ECB, it is possible that other witnesses have forgotten or have only a vague recollection of events. Indeed, it contends that, having been approached by the ECB in 2016 to re-sign their original witness statements, some of them did not confirm those statements.
125 Since the applicant does not dispute that analysis, it must be held that it was open to the ECB to establish a dialogue with her with a view to reaching an agreement offering her fair compensation for the unlawfulness of which she had been the victim. In accordance with the case-law cited in paragraphs 120 and 121 above, the ECB was not, however, obliged to do so. A fortiori, it was not obliged to obtain the applicant’s agreement to compliance by equivalence.
126 In any event, it must be stated that a dialogue was held with a view to reaching an agreement offering the applicant fair compensation for the unlawfulness of which she was the victim, and that the applicant was properly heard in that context. It is apparent from a letter which the applicant’s lawyer addressed to the ECB’s Directorate-General for Human Resources on 27 October 2020 that her lawyer had had ‘several exchanges’ with the ECB’s external counsel and that the latter had been given a mandate ‘to explore a possible dialogue to find a solution in case of “practical difficulties” in making a new inquiry’.
127 Those exchanges include in particular that of 14 July 2020 between the ECB’s external counsel and the applicant’s lawyer. It is apparent from an email of the same date, a partially redacted version of which the applicant produced as an annex to the reply, that the ‘main points’ of that exchange were the following:
‘The implementation of the [annulling] judgment by the opening of a new investigation would probably lead to many difficulties from the … [ECB] side (obviously because of the time which has passed since the facts). The condition for envisaging an implementation “by equivalen[ce]” could therefore be an option …’
128 It is apparent from the same email that the exchange of 14 July 2020 between the ECB’s external counsel and the applicant’s lawyer also concerned the form that such compliance with the annulling judgment could take.
129 It is true that, as the applicant submits, her lawyer considered that it remained to be confirmed that a new inquiry would not be carried out and that, according to her, no dialogue had therefore been initiated.
130 However, it should be noted that that assessment is based on the premiss that a dialogue, within the meaning of the case-law cited in paragraph 120 above, could have been established only at a subsequent stage, after the ECB had, at an initial stage, formally stated that it was encountering major obstacles in complying with the annulling judgment. That premiss is incorrect, since the abovementioned case-law does not in any way require the administration to proceed in two stages.
131 It is also true that, as the applicant maintains, the email of 14 July 2020 states that ‘nothing in what was stated [during that discussion] could be used in any way’.
132 That passage must be understood as meaning that the parties are prohibited from disclosing any opinion expressed, suggestion made, proposal put forward, concession made or document drawn up for the purposes of the dialogue established with a view to reaching an agreement offering the applicant fair compensation for the unlawfulness of which she had been the victim.
133 By contrast, it cannot be inferred from that passage that the ECB was prohibited from relying, in the context of the present proceedings, on the existence of the discussion of 14 July 2020, otherwise it would be impossible for the ECB to prove that it established such a dialogue.
134 The present complaint must therefore be rejected, without there being any need to rule on the ECB’s request that the applicant produce a full version of the email submitted as Annex C.1 to the reply.
(ii) Whether the compensation granted to the applicant is adequate
135 The applicant submits that the sum of EUR 50 000 which was paid to her does not compensate her fairly for the damage that she suffered, an assertion which the ECB disputes.
136 The applicant puts forward, in essence, three arguments in support of her complaint. Those arguments allege (i) errors in the determination of the amount of the damage to be compensated, (ii) damage to the applicant’s reputation and mental well-being, and (iii) a failure of the ECB to give proper weight to the applicant’s situation and the elements in support of her case.
– The determination of the amount of the damage to be compensated and whether the principle of non-discrimination was infringed
137 The applicant alleges that the ECB failed to identify the method by which it took into account the effects of the annulling judgment for the purposes of the compensation and thus infringed Articles 21 and 31 of the Charter. According to the applicant, the ECB also failed to identify and quantify all the disadvantages and negative consequences of the decisions of 24 November 2009 and of 24 March 2010, and failed to fix compensation for each disadvantage and to include a retroactive component in the compensation. Among those consequences, the applicant refers to the lack of appraisal and decision on the annual salary and bonus review for 2007, the sending of the flawed inquiry report to a doctor, and the fact that the ECB placed her in a situation of difficulty and discrimination by not granting her adequate time to carry out the tasks required of her as a member of the Staff Committee.
138 The applicant adds that the amount of the compensation granted to her is neither fair nor adequate. She maintains that the amount of that compensation does not properly take into account either the seriousness of much of the damage caused, the long period of exposure, the lack of inquiry or the loss of the opportunity to benefit from the outcome of the inquiry.
139 The ECB disputes the applicant’s arguments.
140 It should be noted at the outset that, in paragraphs 450 and 451 of the annulling judgment, the Court ordered the ECB to pay the applicant the sum of EUR 20 000 as compensation for non-material damage which, in view of the length of time that had elapsed since the facts of the case, was not capable of being made good in full by the mere annulment of the decisions of 24 November 2009 and of 24 March 2010. As the ECB stated in paragraph 3.19 of the decision of 16 March 2021, that damage arose from the state of insecurity, uncertainty and distress in which the rejection of the applicant’s complaint had placed her.
141 By contrast, in paragraphs 444 and 445 of the annulling judgment, the Court rejected any claim seeking compensation for damage caused by the discrimination and psychological harassment which the applicant claimed to have suffered. The Court considered that it would be for the ECB to take all the measures to give effect to the annulling judgment and, therefore, if necessary, to again take a decision on the applicant’s complaint in order to determine whether the conduct at issue in that case constituted psychological harassment or discrimination against her.
142 In the decision of 17 November 2020, given the difficulties that would be involved in carrying out a new administrative inquiry, the ECB took two measures in order to comply with the annulling judgment. The first is the letter of apology which the ECB addressed to the applicant on 12 January 2021 and which was intended, as is apparent from paragraph 3.21 of the decision of 16 March 2021, to allow the applicant to ‘restor[e] her reputation, professional integrity and a psychological equilibrium’. The second is the payment to the applicant of a sum of EUR 50 000 as compensation for the damage caused to her by the errors identified in that letter.
143 It is apparent from the decision of 17 November 2020 and from paragraphs 1.19 and 3.40 to 3.45 of the decision of 16 March 2021 that that amount was intended to compensate the applicant for the ‘disadvantages that [had] resulted for her from the … decisions [of 24 November 2009 and of 24 March 2010]’ and, in particular, from the loss of the opportunity of benefitting from the outcome of an administrative inquiry free from the errors which the Court had identified in the annulling judgment.
144 In that regard, it should be borne in mind that, in order to calculate the amount of compensation to be paid in respect of the loss of an opportunity, it is necessary, having identified the nature of the opportunity of which the member of staff has been deprived, to determine the date from which he or she would have been given that opportunity, and then quantify that opportunity and, lastly, explain the financial consequences for the member of staff of that loss of opportunity (see judgment of 15 December 2021, HB v EIB, T‑757/19, not published, EU:T:2021:890, paragraph 114 and the case-law cited).
145 Where possible, the opportunity of which a member of staff has been deprived must be calculated objectively, in the form of a mathematical coefficient resulting from an accurate analysis. However, where that opportunity cannot be quantified in this way, it is accepted that the damage suffered may be assessed ex aequo et bono (see judgment of 15 December 2021, HB v EIB, T‑757/19, not published, EU:T:2021:890, paragraph 115 and the case-law cited).
146 In the present case, it must be stated that, as is apparent from paragraph 3.41 of the decision of 16 March 2021, the applicant lost the opportunity to have an administrative inquiry free from the errors identified by the Court in the annulling judgment which may have led to an outcome different from that produced by the administrative inquiry opened in 2008.
147 However, it is not possible to quantify that opportunity or to explain the financial consequences of the loss of that opportunity. First, the applicant has not proposed any quantified assessment of the damage in question. At most, in her special appeal, she assessed the opportunity which she claims to have lost to be ‘at least 50%’. Nonetheless, it remains the case that she has failed to explain the basis on which she arrived at that percentage, save for a vague reference to the ‘findings of the … [annulling judgment]’. She has also not estimated the financial consequences of the opportunity which she claims to have lost.
148 Second, and in any event, a correct calculation of the damage in question would be contingent on a number of hypothetical factors, including the specific outcome of an administrative inquiry free from the errors which the Court had identified in the annulling judgment and, in particular, the amount which the ECB might have granted to the applicant as compensation.
149 The applicant has therefore not established that the ECB committed a manifest error of assessment by assessing ex aequo et bono the alleged loss of opportunity.
150 For even stronger reasons, there is no basis for the applicant’s criticism of the ECB for having disregarded the ‘missing inquiry’ in the assessment of the damage to be compensated, it being understood that, by that, the applicant means the ‘fact that the harassment … [can] be neither excluded nor established’.
151 As regards the disadvantages and negative consequences of the decisions of 24 November 2009 and of 24 March 2010 which the ECB allegedly failed to identify and quantify, the applicant refers to three of them.
152 The first disadvantage to which the applicant refers relates to the lack of appraisal and decision on the annual salary and bonus review for 2007. In paragraph 3.38 of the decision of 16 March 2021, and in response to the Court’s measures of organisation of procedure, the ECB stated that that matter did not fall within the scope of the compliance with the annulling judgment and was to be considered separately. It is true that, as the applicant submits in response to the Court’s measures of organisation of procedure, the ECB had indicated to her in 2009 that the finalisation of her appraisal would depend on the outcome of the administrative inquiry. Nonetheless, the fact remains that the link with the compliance with the annulling judgment is only indirect. Therefore, the ECB was correct to conclude, in paragraph 3.39 of the decision of 16 March 2021, that the applicant’s claim seeking compensation for the damage allegedly resulting from the lack of appraisal and decision on the annual salary and bonus review for 2007 was premature.
153 The second disadvantage to which the applicant refers relates to the fact of sending a flawed inquiry report to a doctor. In paragraph 3.23 of the decision of 16 March 2021, the ECB stated that the claim for compensation for the damage which allegedly resulted from having sent that report was not sufficiently substantiated and that, based on the information available, that claim could not be considered to be related to compliance with the annulling judgment. In the defence, the ECB stated, in essence, that that claim for compensation was addressed in the case which gave rise to the judgment of 30 June 2021, BZ v ECB (T‑554/16, not published, EU:T:2021:387). It is true that, in response to the Court’s measures of organisation of procedure, the applicant submitted that the ECB had failed to comply with that judgment. However, it must be observed that, even if it were established, that matter is outside the scope of the present dispute.
154 The third disadvantage alleged by the applicant is that the ECB placed her in a difficult situation and discriminated against her by not granting her adequate time to carry out the tasks required of her as a member of the Staff Committee.
155 In that respect, it suffices to note that the ECB had already been ordered to compensate the applicant for the damage that she had suffered as a result of the failure to adjust her workload to take account of [confidential] which she had obtained in order to carry out [confidential] (judgment of 28 October 2010, BZ v ECB, F‑84/08, EU:F:2010:134, paragraph 58).
156 The applicant has therefore not discharged the burden of proof that she bears of establishing that the ECB had failed to identify and quantify the disadvantages and negative consequences of the decisions of 24 November 2009 and of 24 March 2010.
157 So far as concerns taking into account the seriousness of the damage caused and the long period of exposure alleged by the applicant, it must be stated that the amount of EUR 50 000 which was granted to her was intended to compensate her for the damage which various errors of the administration had caused to her, including an infringement of the Dignity at Work Policy on the part of the ECB, the errors made by the inquiry panel and the destruction of the inquiry file.
158 In paragraphs 3.15 to 3.45 of the decision of 16 March 2021, the ECB examined all the arguments by which the applicant sought to demonstrate that the sum of EUR 50 000 granted to her did not make it possible to provide compensation for all the forms of damage which she claimed to have suffered. The ECB rejected each of those heads of damage.
159 Before the Court, the applicant has however failed to explain in what respect the ECB’s assessment does not properly take into account relevant considerations relating to seriousness and duration.
160 As regards, lastly, the alleged failure of the ECB to include a retroactive component in the compensation, the applicant has failed to clarify that argument to the requisite legal standard.
161 It follows from the foregoing that neither the applicant’s allegation that the ECB failed to identify the method by which it had taken into account the effects of the annulling judgment for the purposes of the compensation, nor her allegation that, as a result, the ECB infringed Articles 21 and 31 of the Charter is well founded.
162 It follows that the present argument must be rejected.
– The damage to the applicant’s reputation and mental well-being
163 The applicant submits that the decisions of 24 November 2009 and of 24 March 2010 have affected her working situation, her health and her mental well-being. With regard to the negative comments which she claims to have been subjected to, she maintains that they harmed her reputation vis-à-vis the Executive Board and the EU Courts. According to her, those comments led to the judgment of 12 December 2012, BZ v ECB (F‑43/10, EU:F:2012:184), which remained valid until it was set aside in September 2015. She argues that, in that judgment, her reputation was again damaged solely on the basis of the elements provided to the Court, some of which were false, offensive and defamatory.
164 The applicant adds that she had to spend considerable time and effort defending herself and restoring her good name.
165 The ECB disputes the applicant’s arguments.
166 It must be stated at the outset that the applicant is not justified in alleging that the ECB failed to compensate her for the time and effort which she spent defending herself and restoring her good name. As has been noted in paragraph 140 above, in paragraphs 450 and 451 of the annulling judgment, the Court ordered the ECB to pay the applicant the sum of EUR 20 000 as compensation for non-material damage arising from the state of insecurity, uncertainty and distress in which the rejection of the applicant’s complaint had placed her. It is apparent from paragraph 448 of that judgment that, as the ECB in essence indicated in paragraph 3.20 of the decision of 16 March 2021, that state resulted precisely from the fact that the applicant had been required to undergo a pre-litigation procedure and then contended court proceedings in order to obtain the recognition of her rights.
167 As regards the damage to the applicant’s reputation, health and mental well-being, it should be noted, first, that the decision of 17 November 2020 envisaged the sending of a letter by which the ECB would acknowledge that it made mistakes, express its apologies to the applicant and thank her for her work at the ECB, and, second, that the ECB addressed a letter of apology to the applicant on 12 January 2021. As the ECB stated in paragraph 3.21 of the decision of 16 March 2021, that letter was intended to allow the applicant to ‘restor[e] her reputation, professional integrity and a psychological equilibrium’.
168 It is true that the applicant submits that the letter of 12 January 2021 does not properly repair the ‘serious’ damage caused to her reputation, her professional integrity and her psychological well-being as from 2009.
169 However, it must be observed that the letter of 12 January 2021, the elements of which, apart from the duty of confidentiality, she acknowledges ‘are in her favour’, does not constitute the only compensation that she received for that non-material damage. In paragraphs 3.18 to 3.21 of the decision of 16 March 2021, the ECB stated that the annulment of the decisions of 24 November 2009 and of 24 March 2010 and the grant to the applicant of the compensation referred to in paragraph 166 above were also intended to provide reparation for the abovementioned damage. The applicant has failed to explain how those various elements, taken together, were not sufficient to repair the damage in question.
170 It follows that the present argument must be rejected.
– The consideration of the applicant’s interests and of the elements supporting her case
171 The applicant alleges that the ECB infringed the duty of care, ‘staff welfare’ and Articles 21 and 31 of the Charter. According to the applicant, the ECB calculated the compensation granted to the applicant without considering or properly balancing her situation, her interests and the elements that supported her case, namely the many years of strain which she claims to have suffered and the fact that the illegalities committed have had a very significant impact and effect on her person, her reputation, her health and her working situation.
172 The ECB disputes the applicant’s arguments.
173 In that regard, it should be borne in mind that it is for the institution concerned, in the exercise of the discretion conferred on it by Article 266 TFEU, to choose between the various measures possible in order to reconcile the interests of the service and the need to remedy the damage caused to a member of its staff (see, to that effect, judgment of 8 October 1992, Meskens v Parliament, T‑84/91, EU:T:1992:103, paragraph 78).
174 In the present case, the applicant identifies two elements which, according to her, the ECB did not properly take into account. The first element relates to the many years of strain which she claims to have suffered. However, as is apparent from paragraph 3.19 of the decision of 16 March 2021, the annulling judgment already ordered the ECB to compensate the applicant for the damage arising from the state of insecurity, uncertainty and distress in which the rejection of the applicant’s complaint had placed her (see paragraph 140 above).
175 The second element relates to the very significant impact and effect of the illegalities identified in the annulling judgment on the applicant’s person, reputation, health and working situation. However, it is apparent from paragraphs 166 to 170 above that the applicant’s allegation that the ECB did not take those elements into account is unfounded.
176 The present argument must therefore be rejected.
(b) The application for annulment of the letter of 12 January 2021 in so far as it allegedly imposed a ‘duty of confidentiality’ on the applicant
177 In support of her application for annulment in part of the letter of 12 January 2021, the applicant puts forward, in essence, a single plea alleging infringement of Article 266 TFEU. She submits that the letter of 12 January 2021 cannot restore her reputation, professional integrity and psychological well-being, since it bears the marking ‘ECB-Confidential Personal’ and keeps her in a situation of difficulty and discrimination.
178 She maintains that, according to the internal ECB rules applicable at the material time, the marking ‘ECB-Confidential Personal’ prohibited the applicant from sharing the letter of 12 January 2021 inside and outside the ECB. According to her, those rules did not allow the applicant to share the abovementioned letter without the prior approval of her line manager. In support of her arguments, the applicant produces an email from the ECB’s Directorate-General for Human Resources.
179 She submits that the fact that, in the decision of 16 March 2021, the ECB granted her the possibility of sharing the content and existence of the letter of 12 January 2021 does not fully resolve the ‘confidentiality constraint’. The applicant argues that she is still not permitted to share that letter as a valid document that carries the weight and importance that should be given to an ECB document.
180 The applicant adds that, in the meantime, the ECB has made changes to its internal rules. She argues that those changes allow documents marked ‘ECB-Confidential Personal’ to be shared with members of the ECB Staff Committee without the prior approval of the line manager. However, according to her, those rules do not allow the applicant to share the letter of 12 January 2021 except on a ‘need-to-know’ basis and ‘in confidence’.
181 The ECB disputes the applicant’s arguments.
182 In that regard, it must be stated that, as is apparent from paragraph 58 above, the letter of 12 January 2021 bears the marking ‘ECB-Confidential Personal’, although it cannot be immediately inferred from that marking that the ECB thus intended to prohibit the applicant from disseminating the letter to third parties.
183 Nonetheless, it is apparent from paragraph 64 above that that was indeed the case.
184 As has been stated in paragraph 65 above, the decision of 16 March 2021 permitted the applicant to share the existence and content of that letter with third parties inside and outside the ECB.
185 Therefore, it is necessary to determine the scope of the permission contained in the decision of 16 March 2021.
186 In that respect, it should be noted, as the applicant submits, that the ECB did not, by the decision of 16 March 2021, expressly permit her to disseminate the letter of 12 January 2021 to third parties, but only to inform them of the existence and content of that letter.
187 However, it must be held that, by permitting the applicant to share the existence and content of the letter of 12 January 2021 with third parties, the ECB implicitly permitted her to disseminate that letter to them.
188 The ECB’s written pleadings support that conclusion. When the applicant maintained that she had not been permitted to disseminate the letter of 12 January 2021, the ECB accused her of ‘recurrently disregarding replies that are provided by the administration with all the appropriate care and then completely ignoring the extensive reply to her special appeal’, and of ‘completely ignor[ing] the information she [had] received from the Executive Board as well as the detailed explanations provided in … the Defence’. Such accusations would be meaningless if the ECB had not intended to allow the applicant to disseminate the letter of 12 January 2021 to third parties when it permitted her to share the existence and content of that letter with such parties.
189 Nonetheless, the fact remains that, as the applicant submits, the right thus granted to her to share the letter of 12 January 2021 is not unlimited. As is apparent from paragraphs 167 and 184 above, the applicant is permitted to share the letter of 12 January 2021 with third parties inside and outside the ECB only for the purpose of ‘restoring her reputation, professional integrity and a psychological equilibrium’.
190 However, the applicant has not alleged that such a restriction is liable to frustrate the proper compliance with the annulling judgment.
191 The applicant’s claim that the ECB infringed Article 266 TFEU by prohibiting her from disseminating the letter of 12 January 2021 is therefore unfounded. Nor, consequently, can she accuse the ECB of keeping her in a situation of difficulty and discrimination as a result.
192 It follows that the present plea in law must be rejected as unfounded.
193 Therefore, the claim for annulment of the letter of 12 January 2021 must be dismissed, as must the claims for annulment in their entirety.
2. The claim for compensation
194 The applicant submits that the ECB should be ordered to pay compensation for the non-material damage which she claims to have suffered. In essence, she identifies three forms of damage, which she assesses at EUR 30 000.
195 First, the applicant maintains that the ECB has not properly protected her rights, for the reasons set out in the first to third pleas.
196 Second, the applicant submits, in essence, that she was obliged to send several letters, with the assistance of external advisers, in order to be properly informed of the compliance with the annulling judgment.
197 Third, the applicant argues that she had to bring an application before the Court seeking proper compliance with the annulling judgment and satisfactory compensation for the disadvantages and damage caused to her.
198 The ECB disputes the applicant’s arguments.
199 In that respect, as regards the first form of damage, it should be noted that claims for compensation for material or non-material damage must be dismissed where they are closely associated with claims for annulment which have themselves been dismissed as inadmissible or unfounded (see judgment of 19 December 2019, ZQ v Commission, T‑647/18, not published, EU:T:2019:884, paragraph 202 and the case-law cited).
200 In the present case, it is apparent from the applicant’s written pleadings that the present claim, in so far as it concerns the first form of damage, seeks compensation for the detrimental consequences of the alleged illegalities in the context of the first to third pleas relied on in support of the claims for annulment.
201 It follows that the present claim, in so far as it concerns the first form of damage, is closely associated with the claims for annulment of the decision of 17 November 2020 and of the letter of 12 January 2021. Since those claims for annulment have been dismissed as unfounded, the present claim must also be dismissed in so far as it concerns that form of damage.
202 With regard to the second and third forms of damage, it should be recalled that, in order for the European Union to incur liability, a number of conditions must be satisfied: the illegality of the allegedly wrongful act committed by the institutions, actual harm suffered and the existence of a causal link between the act and the damage alleged to have been suffered (judgments of 1 June 1994, Commission v Brazzelli Lualdi and Others, C‑136/92 P, EU:C:1994:211, paragraph 42, and of 21 February 2008, Commission v Girardot, C‑348/06 P, EU:C:2008:107, paragraph 52). Since those conditions must be satisfied cumulatively, the fact that one of them has not been satisfied is a sufficient basis on which to dismiss an action for damages (judgment of 9 September 1999, Lucaccioni v Commission, C‑257/98 P, EU:C:1999:402, paragraph 14).
203 As regards the second form of damage, it suffices to note that the applicant was properly informed of the content of the contested decision as of 25 November 2020 (see paragraphs 105 to 107 above) and that she was therefore not ‘obliged’ to send several letters to the ECB for that purpose. The applicant has therefore not demonstrated any illegality, contrary to the requirements of the case-law cited in paragraph 202 above.
204 As regards the third form of damage, it should also be noted that the damage for which compensation is sought must be actual and certain and quantifiable. It is for the applicant to produce to the Court the evidence to establish the existence and the extent of that damage (see judgment of 26 October 2011, Dufour v ECB, T‑436/09, EU:T:2011:634, paragraph 192 and the case-law cited).
205 According to the case-law, the non-material nature of the damage allegedly suffered is not capable of reversing the burden of proof as regards the existence and the extent of the damage, which lies with the applicant (judgment of 29 April 2015, CC v Parliament, T‑457/13 P, EU:T:2015:240, paragraph 49).
206 However, in the present case, the applicant has not produced any evidence to establish the existence and the extent of the damage which she claims to have suffered due to the fact that she had to bring the present action. It follows that the applicant cannot be compensated on that basis.
207 It must therefore be concluded that the claim for compensation must be dismissed, as must the action in its entirety.
IV. Costs
208 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
209 However, under Article 135(1) of the Rules of Procedure, if equity so requires, the Court may decide that an unsuccessful party is to pay only a proportion of the costs of the other party in addition to bearing his or her own, or even that he or she is not to be ordered to pay any.
210 The Court therefore considers, on a fair assessment of the circumstances of the present case, that each party must be ordered to bear their own costs.
On those grounds,
THE GENERAL COURT (First Chamber)
hereby:
1. Dismisses the action;
2. Orders BZ and the European Central Bank (ECB) to bear their own costs.
Delivered in open court in Luxembourg on 18 October 2023.
V. Di Bucci | | M. van der Woude |