18 October 2023 (*)

(Civil service – ECB staff – Complaint of discrimination and psychological harassment – Internal administrative inquiry – Compliance with a judgment of the General Court – Time limit for bringing proceedings – Point from which time starts to run – Pre-litigation procedure – Liability – Action in part manifestly inadmissible and in part manifestly lacking any foundation in law)

In Case T‑631/21,

BZ,

applicant,

European Central Bank (ECB),

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,

makes the following

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 of the decisions of the European Central Bank (ECB) of 16 March and 13 July 2021, and (ii) compensation for the damage which she allegedly suffered as a result of those decisions.

Background to the dispute

The applicant entered the service of the ECB in [confidential]. (1)

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; ‘the Conditions of Employment’). 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.

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 referred to in paragraph 3 above was based were not substantiated (‘the decision of 24 November 2009’).

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 and to Article 8.1.6 of the ECB Staff Rules.

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’).

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.

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.

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.

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).

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.

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.

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.

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 decision of 17 November 2020’):

–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.

On 25 November 2020, 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.’

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.

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’.

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.

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’).

On 12 January 2021, the ECB sent the applicant a letter marked ‘ECB-Confidential Personal’ (‘the letter of 12 January 2021’). 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.

On 18 January 2021, the sum of EUR 50 000 was transferred to the applicant’s bank account.

On 21 January 2021, the applicant submitted a special appeal against the decision of 17 November 2020.

By decision of 16 March 2021 (‘the decision of 16 March 2021’), the ECB rejected the special appeal of 21 January 2021. The applicant was informed of that decision by letter of 17 March 2021, which she received on 19 March 2021.

On 22 March 2021, the applicant brought an action before the Court seeking the annulment in part of the decision of 17 November 2020 and of the letter of 12 January 2021. That action was registered under case number T‑162/21.

On 18 May 2021, the applicant submitted a special appeal against the decision of 16 March 2021. By decision of 13 July 2021 (‘the decision of 13 July 2021’), the Executive Board of the ECB rejected the special appeal as inadmissible.

Forms of order sought

The applicant claims, in essence, that the Court should:

–annul the decisions of the ECB of 16 March 2021 and of 13 July 2021;

–order the ECB to pay to her:

–compensation of EUR 200 000 for infringement of her right to private life with respect to dignity and professional integrity;

–compensation of EUR 130 000 for infringement of her right to private life with respect to the right to health;

–compensation of EUR 20 000 for the sending of documents to a doctor;

–compensation to be calculated based on the outcome of the case registered under number T‑500/16, BZ v ECB, for loss of income;

–compensation of EUR 20 000 for the ‘deep feeling of injustice’, the lengthening of the duration of the procedure and the reduction of the probability of obtaining a final decision on her request for assistance due to the destruction of the inquiry file;

–compensation of EUR 52 000 for the delay in adopting the decision concerning appraisal of performance and the annual salary and bonus review for 2007, covering the period from 2007 to 2021;

–compensation of EUR 150 000 for the lack of a decision on appraisal of performance and on the annual salary and bonus review, and for the delay in that regard;

–compensation of EUR 700 000 for the definitive loss of the opportunity to benefit from the outcome of a new inquiry;

–order the ECB to pay the costs.

In the plea of inadmissibility, the ECB contends that the Court should:

–dismiss the action as manifestly inadmissible;

–order the applicant to pay the costs.

In her observations on the plea of inadmissibility, the applicant claims, in essence, that the Court should:

–reject the plea of inadmissibility;

–require the ECB to communicate to her the decision of 17 November 2020 in its entirety.

Under Article 126 of the Rules of Procedure of the General Court, where an action is manifestly inadmissible or manifestly lacking any foundation in law, the Court may, on a proposal from the Judge-Rapporteur, at any time decide to give a decision by reasoned order without taking further steps in the proceedings.

In the present case, the Court considers that it has sufficient information from the documents in the file and has decided, pursuant to Article 126 of the Rules of Procedure, to give a decision without taking further steps in the proceedings.

The claims for annulment

The applicant seeks the annulment of the decision of 16 March 2021 (see paragraphs 32 to 84 below) and of the decision of 13 July 2021 (see paragraphs 85 to 93 below).

The application for annulment of the decision of 16 March 2021

–The subject matter of the application for annulment of the decision of 16 March 2021

The applicant seeks the annulment of the decision of 16 March 2021 in so far as it rejects the request, set out in the special appeal of 21 January 2021, to re-examine the decision of 17 November 2020. By contrast, the applicant does not formally seek the annulment of the decision of 17 November 2020.

The applicant argues that the decision of 16 March 2021 is a new decision, an assertion which the ECB disputes.

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).

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 changes the original decision or contains a re-examination of an applicant’s situation in the light of new elements of law or of fact which, had they arisen or become known by the competent authority before the adoption of the original decision, would have been taken into consideration. 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, judgment of 21 September 2011, Adjemian and Others v Commission, T‑325/09 P, EU:T:2011:506, paragraph 32 and the case-law cited, and the annulling judgment, paragraphs 71 and 75).

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).

38In the present case, it must be examined whether the decision of 16 March 2021 is independent of the decision of 17 November 2020 or whether, conversely, it merely sets out, in a detailed manner, the grounds for the decision of 17 November 2020.

3938

40In order to do so, it is necessary to determine the content of the decision of 17 November 2020, on which matter the parties disagree.

4139

42The applicant submits that the certified document, which was communicated to her by the letter of 18 December 2020, does not include several elements contained in the letter of the Directorate-General for Human Resources of 25 November 2020, including the words ‘compensation of the prejudice assessed ex aequo et bono’. She maintains that the letter of 25 November 2020 also uses the conditional tense to inform her of the measures to comply with the annulling judgment, thereby raising doubts regarding the content of the ‘purely internal’ decision of 17 November 2020 which was not addressed to the applicant, nor was it accessible by her.

4340

44The ECB contends that the letter of 25 November 2020 informed the applicant of the measures taken during the Executive Board meeting of 17 November 2020.

4541

46In 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 had decided to address a letter of apology to the applicant and to grant her a ‘payment ex aequo et bono of EUR 50 000’.

4742

48On 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 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 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 and was assessed ex aequo et bono.

4943

50The 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.

5144

52Consequently, there were no substantial differences between the certified document and the letter of the Directorate-General for Human Resources of 25 November 2020. Therefore, neither the applicant’s allegation that that letter does not adequately reflect the content of the decision of 17 November 2020, nor her allegation that she was not properly informed of the exact content of and grounds for that decision is well founded.

5345

54It is in the light of those considerations that it must be determined whether the applicant is correct in submitting that the decision of 16 March 2021 is independent of the decision of 17 November 2020.

5546

56The ECB contends that the decision of 16 March 2021 is explanatory in relation to the decision of 17 November 2020, in respect of which it does not carry out any re-examination. It argues that the decision of 16 March 2021 merely elaborates on the grounds for the decision of 17 November 2020 and does not constitute a measure capable of being subject to review by the EU Courts.

5747

58The applicant submits that the decision of 16 March 2021 carries out a reassessment of the measures taken by the ECB pursuant to the annulling judgment in the decision of 17 November 2020 and contains several new elements. These include the letter of 12 January 2021, the decision not to reopen the administrative inquiry, the applicant’s agreement to the compliance measures, the fact that the Executive Board made an ‘assessment’ at the time of adopting the decision of 17 November 2020, the fact that the compensation granted to the applicant covers all damage suffered and must be defined as ‘ex aequo et bono’, statements regarding how that compensation was calculated, the assessment of the admissibility of the special appeal of 21 January 2021, new information provided as ‘salient facts’, and new elements provided in the part relating to the substance of the special appeal.

5948

60The applicant adds that the special appeals procedure was vitiated, her right of action was contravened and the principle of legal certainty was infringed on account of the ECB’s refusal to communicate to her the full decision of 17 November 2020, of which she claims to have received only extracts. According to the applicant, the ECB failed to include in those extracts the essential elements referred to in paragraph 47 above, thereby depriving her of the possibility of effectively comparing the decision of 16 March 2021 with the decision of 17 November 2020.

6149

62It is true that 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.

6350

64Nonetheless, 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, nor does it change the decision of 17 November 2020. As the ECB correctly contends, the decision of 16 March 2021 merely elaborates on the grounds on which the decision of 17 November 2020 was already based.

6551

66Thus, in the first part of the decision of 16 March 2021, the ECB recalled the facts. In that context, in paragraphs 1.12 and 1.13, it described the exchanges which the ECB and its external counsel had with the applicant’s lawyer following the delivery of the annulling judgment. In paragraphs 1.14 to 1.20 of the decision of 16 March 2021, the ECB explained why it had, in the decision of 17 November 2020, opted for the approach to compliance described in paragraph 14 above. In particular, it described the practical difficulties which had been the reason for not carrying out a new administrative inquiry.

6752

68Contrary to what the applicant submits, there is no new element in that regard, within the meaning of the case-law cited in paragraph 35 above. Indeed, paragraphs 1.12 and 1.13 of the decision of 16 March 2021 concern the exchanges which took place between the applicant’s lawyer and the ECB between June and October 2020. As for paragraphs 1.17 and 1.18, they concern the form that compliance, in an equivalent manner, with the annulling judgment would take, in view of the need to give effect to that judgment within a reasonable time and to take into account the preferences which the applicant had expressed during some of those exchanges. However, those exchanges not only preceded the adoption of the decision of 17 November 2020, but were also necessarily known to the ECB. Moreover, the need to give effect to the annulling judgment within a reasonable time refers simply to the right of every person to have his or her affairs handled within a reasonable time under Article 41(1) of the Charter of Fundamental Rights of the European Union, the application of which to the present case the applicant must be assumed to have been aware of. As regards the elements contained in paragraphs 1.17 and 1.18 concerning the form that compliance, in an equivalent manner, with the annulling judgment could take, they correspond, in essence, to what was already apparent from the certified document.

6953

70With regard to the alleged agreement of the applicant to the compliance measures, it suffices to note that such agreement is not referred to in the decision of 16 March 2021.

7154

72So far as concerns, lastly, the ‘new elements included in [paragraphs] 1.14 to 1.19’ of the decision of 16 March 2021, even if such elements differ from those allegedly contained in paragraphs 1.17 and 1.18 (see paragraph 52 above), it suffices to note that the applicant has failed to identify them.

7355

74As regards the letter of 12 January 2021, which is referred to in paragraph 1.22 of the decision of 16 March 2021, it suffices to observe that it corresponds to the letter of apology referred to in the decision of 17 November 2020 and that the applicant, in any event, expressly refrained from challenging it in the context of the present action. In addition, it should be noted that the applicant states that the subject matter of the action also does not cover the issue of the confidentiality of the letter of 12 January 2021.

7556

76In the second part of the decision of 16 March 2021, the ECB examined the admissibility of the special appeal of 21 January 2021. Contrary to what the applicant maintains, that examination does not constitute a new element of law or of fact in the light of which the ECB could have re-examined the applicant’s situation. It does not in any way relate to the situation of law or of fact on which the ECB adjudicated in the decision of 17 November 2020. Moreover, it is not capable of changing the decision of 17 November 2020, since it does not concern the latter, but relates solely to the administrative special appeal procedure itself.

7757

78In 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 the decision of 17 November 2020. According to the ECB, the applicant challenged, inter alia, the amount of the financial compensation paid.

7958

80Contrary to what the applicant submits, those paragraphs do not contain any new element whatsoever. As is clear in particular from paragraphs 42 and 43 above, the fact that the compensation granted to the applicant covers all damage suffered and must be defined as ‘ex aequo et bono’ was implicit in the decision of 17 November 2020, as is apparent from the certified document. The same applies to the decision not to reopen the administrative inquiry, since the ECB, in paragraphs 1.15, 3.3 and 3.4 of the decision of 16 March 2021, merely set out, in a detailed manner, the obstacles to such reopening.

8159

82Contrary to what the applicant also maintains, paragraph 3.41 of the decision of 16 March 2021 does not contain any new element regarding how that compensation was calculated. That paragraph merely responds to the request for compensation for the damage relating to the loss of 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. First, the abovementioned paragraph notes that the sum of EUR 50 000 granted to the applicant pursuant to the annulling judgment was intended to compensate her for the disadvantages which she had suffered as a result of the decisions of 24 November 2009 and of 24 March 2010 given the practical difficulties involved in reopening the administrative inquiry (see paragraph 58 above). Second, the paragraph in question states 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. However, that element, which was already apparent from the letter of the Directorate-General for Human Resources of 25 November 2020, is implicit in the certified document. Indeed, if the Executive Board considered that it was necessary to comply, in an equivalent manner, with the annulling judgment given the difficulties raised by a reopening of the administrative inquiry, that was necessarily because it took the view that the outcome of an administrative inquiry free from the errors identified by the Court in the annulling judgment was uncertain.

8360

84As regards paragraph 1.19 of the decision of 16 March 2021, to which the applicant also refers, it merely sets out, in a detail manner, the means used to calculate the amount of the compensation fixed in the decision of 17 November 2020 and specifies the reasons, arising from the uncertainty of the situation, for which the methodology relating to the loss of an opportunity could not be used.

8561

86In paragraphs 3.14 to 3.45, the ECB examined the various grounds put forward by the applicant in her special appeal of 21 January 2021 for the purposes of demonstrating that the amount of EUR 50 000 which the ECB had granted to her ‘ex aequo et bono’ on 17 November 2020 was insufficient.

8762

88So far as concerns the ‘new elements’ allegedly contained in the part of the decision of 16 March 2021 relating to the substance of the special appeal of 21 January 2021, it is sufficient to note that the applicant has failed to identify those elements or to provide the Court with any evidence whatsoever which could make it possible to identify them.

90It results from the foregoing that, in so far as it is challenged in the present action, the decision of 16 March 2021 lacks any independent content. In accordance with the case-law cited in paragraph 34 above, it must therefore be held that the present action has the effect of bringing before the Court the decision of 17 November 2020.

9164

92The legality of that decision must nonetheless be assessed in the light of the statement of reasons given in the decision of 16 March 2021, the statement of reasons for which 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).

– The admissibility of the application for annulment of the decision of 17 November 2020

9365

94It should be recalled at the outset that the periods for submitting special appeals and for bringing proceedings before the Court, as referred to in Articles 8.1.6 and 8.2.1 of the ECB Staff Rules, are matters of public policy and cannot be left to the discretion of the parties or the Court, which must ascertain, of its own motion if need be, whether they have been complied with. Those periods meet the requirement of legal certainty and the need to avoid any discrimination or arbitrary treatment in the administration of justice (see, by analogy, judgments of 29 June 2000, Politi v ETF, C‑154/99 P, EU:C:2000:354, paragraph 15, and of 29 November 2018, WL v ERCEA, T‑493/17, not published, EU:T:2018:852, paragraph 64).

9566

96In the present case, the Court considers that it must examine, of its own motion, whether the application for annulment of the decision of 17 November 2020 was brought within the applicable periods.

9767

98Article 36.2 of the Statute of the European System of Central Banks and of the ECB grants the Court of Justice of the European Union jurisdiction in any dispute between the ECB and its servants within the limits and under the conditions laid down in the Conditions of Employment.

9968

100Article 41 of the Conditions of Employment and Articles 8.1 and 8.2 of the ECB Staff Rules provide for a pre-litigation procedure which any ECB official must observe prior to bringing proceedings before the Court against the decisions or acts of the ECB. It follows from those provisions that the pre-litigation procedure comprises two stages: first, an administrative review procedure and, second, a grievance procedure.

10169

102Point (ii) of the second paragraph of Article 41 of the Conditions of Employment states, however, that, as was also stated in paragraph 2.2 of the decision of 13 July 2021, those procedures may not be used to challenge a decision for which special appeals procedures exist.

10370

104According to Article 8.1.6 of the ECB Staff Rules, decisions taken by the Executive Board are to be subject to a special appeals procedure. The special appeal must be brought within two months from the date on which such a decision was communicated to the member of staff concerned.

10571

106The first paragraph of Article 42 of the Conditions of Employment provides that, after all available internal procedures have been exhausted, the Court of Justice of the European Union is to have jurisdiction in any dispute between the ECB and a member of its staff to whom those conditions of employment apply.

10772

108According to Article 8.2.1 of the ECB Staff Rules, an appeal to the Court of Justice of the European Union against a final decision taken in a special appeals procedure is to be filed within two months from the date on which the member of staff concerned was notified of that decision.

10973

110Under Article 60 of the Rules of Procedure, that time limit is to be extended on account of distance by a single period of 10 days.

11174

112In the present case, the Executive Board is the author of the decision of 17 November 2020. That decision therefore had to be subject to the special appeals procedure.

11375

The applicant initiated that procedure on 21 January 2021 when she submitted a special appeal against the decision of 17 November 2020.

76By the decision of 16 March 2021, the Executive Board rejected the special appeal of 21 January 2021. In paragraph 2.5 of the decision of 13 July 2021, the ECB classified that decision as a final decision taken in a special appeals procedure, within the meaning of Article 8.2.1 of the ECB Staff Rules.

77The applicant nonetheless disputes that classification of the decision of 16 March 2021. She maintains that it was impossible for her properly to exercise her right of defence and right of action against the purely internal decision of 17 November 2020 when she submitted her special appeal of 21 January 2021 which, moreover, she describes as ‘preliminary’. According to her, the full text of the decision of 17 November 2020 had not been notified to her on that date.

78The applicant submits that the decision of 16 March 2021 is the only decision giving effect to the annulling judgment which was notified to her. She argues that it was only by the decision of 16 March 2021 that she was informed of several elements which, it is claimed, are absent from the certified document. According to her, the decision of 16 March 2021 also contains a reassessment of the adequacy of those compliance measures and consists of 14 pages, as compared with only a few lines in respect of the certified document.

79In the present case, it is apparent from paragraphs 41 to 44 above that, when the applicant submitted her special appeal of 21 January 2021, she had knowledge of the exact content of, and grounds for, the decision of 17 November 2020. As is apparent from paragraphs 49 to 63 above, the decision of 16 March 2021 merely set out, in a detailed manner, the grounds on which the decision of 17 November 2020 was already based.

80Therefore, the ECB was correct to consider that the decision of 16 March 2021 constituted a final decision taken in a special appeals procedure.

81Since the applicant received notification of the decision of 16 March 2021 on 19 March 2021, it must be held that the period for bringing proceedings before the Court in accordance with Article 8.2.1 of the ECB Staff Rules expired on 31 May 2021.

82The applicant brought the present action on 27 September 2021, that is to say, almost four months after the expiry of that period.

83In the absence of any unforeseeable circumstances or ex aequo et bono, it must be concluded that the applicant, in the context of the present action, applied for the annulment of the decision of 17 November 2020 out of time.

84It follows that the application for annulment of the decision of 17 November 2020 must be rejected as manifestly inadmissible.

The application for annulment of the decision of 13 July 2021

85The applicant alleges that the ECB’s decision of 13 July 2021, which rejected the special appeal of 18 May 2021 as inadmissible, was vitiated by errors of fact and of law. According to her, it was contrary to the principle of legal certainty, the right of action, the first paragraph of Article 42 of the Conditions of Employment and Articles 8.1.6 and 8.2.1 of the ECB Staff Rules to claim that she did not bring proceedings before the Court against the decision of 16 March 2021 within a period of two months from the receipt of that decision.

86The ECB contends that the application for annulment of the decision of 13 July 2021 is inadmissible.

87In that regard, it should be borne in mind that the Court may determine, on the basis of the circumstances of each case, whether the proper administration of justice justifies the dismissal of an action on the merits without first ruling on the plea of inadmissibility raised by the defendant (see, to that effect, judgment of 26 February 2002, Council v Boehringer, C‑23/00 P, EU:C:2002:118, paragraph 52).

88In the present case, the Court considers it appropriate, in the interests of procedural economy, to examine at the outset the merits of the application for annulment of the decision of 13 July 2021, without first ruling on the plea of inadmissibility raised by the ECB.

89As is apparent from paragraph 71 above, after all available internal procedures have been exhausted, the Court of Justice of the European Union is to have jurisdiction in any dispute between the ECB and a member of its staff to whom the abovementioned conditions of employment apply.

90However, as is apparent from paragraphs 76 to 80 above, the decision of 16 March 2021 exhausted all available internal procedures.

91The ECB was therefore correct to state, in paragraph 2.7 of the decision of 13 July 2021, that the review of the decision of 16 March 2021 came under the exclusive jurisdiction of the Court.

92It follows that the applicant was not justified in challenging the decision of 16 March 2021 by means of a special appeal and that the ECB did not err in law by rejecting that appeal as inadmissible.

93It must therefore be concluded that the application for annulment of the decision of 13 July 2021 is manifestly lacking any foundation in law. Consequently, the claims for annulment must be dismissed in their entirety.

The claims for compensation

94The applicant submits, in essence, that the ECB should be ordered to pay compensation for the following six forms of material and non-material damage, which she estimates at EUR 1 272 000 in total:

–loss of the opportunity to benefit from the outcome of the administrative inquiry, estimated at EUR 700 000;

–non-material damage on account of infringement of the right to private life, estimated at EUR 200 000;

–non-material damage on account of infringement of the right to health, estimated at EUR 130 000;

–non-material damage on account of the suffering and distress caused by the sending of documents to a doctor, estimated at EUR 20 000;

–non-material damage on account of stress, the ‘deep feeling of injustice’, the lengthening of the duration of the procedure and the reduction of the probability of obtaining a final decision on her request for assistance due to the destruction of the inquiry file, estimated at EUR 20 000;

–non-material and material damage on account of the lack of appraisal and decision on the annual salary and bonus review for 2007, and for the delay in that regard, estimated at EUR 202 000.

95The applicant also seeks compensation for a seventh form of damage relating to ‘income loss’, the amount of which, she claims, is to be ‘calculated following the result of … [C]ase T‑500/16’. Nevertheless, she states that, according to a preliminary calculation, that amount comes to ‘about EUR 1 million’.

96The ECB contends that the present claims are inadmissible.

97In the present case, it is necessary to examine, as a first step, the forms of damage relating to (i) the loss of the opportunity to benefit from the outcome of the administrative inquiry, (ii) infringement of the applicant’s right to private life, (iii) infringement of her right to health, and (iv) the destruction of the inquiry file; as a second step, the forms of damage relating to (i) the sending of documents to a doctor and (ii) the lack of appraisal and decision on the annual salary and bonus review for 2007; and, as a third step, the damage relating to ‘income loss’.

The forms of damage relating to (i) the loss of the opportunity to benefit from the outcome of the administrative inquiry, (ii) infringement of the applicant’s right to respect for private life, (iii) infringement of her right to health, and (iv) the destruction of the inquiry file

98It should be borne in mind that the action for annulment and the action for damages are independent remedies. However, an exception to that principle has been accepted in civil service law when a claim for compensation is closely linked to the claim for annulment which the Court has previously rejected (order of 19 December 2022, XH v Commission, T‑522/21, not published, EU:T:2022:867, paragraph 99).

99Claims for compensation for material or non-material damage must accordingly be dismissed where they are associated in such a way 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).

100The claims for compensation for the first four forms of damage at issue are all closely linked to the claim for annulment of the decision of 16 March 2021, which the Court dismissed as inadmissible in paragraph 84 above.

101It must be stated that each of those forms of damage allegedly result from illegalities by which the decision of 17 November 2020, as explained by the decision of 16 March 2021, is alleged to be vitiated. Thus, first, as regards the damage relating to the loss of the opportunity to benefit from the outcome of the administrative inquiry, the ECB stated, in paragraph 1.19 of the decision of 16 March 2021, that the concept of the loss of an opportunity was not useful in the present case. Second, as regards the damage suffered on account of infringement of the right to health, it is apparent from paragraph 134 of the application that the applicant, in essence, alleges that the ECB did not properly take that damage into account when calculating the compensation which was granted to her in the decision of 17 November 2020, as explained by the decision of 16 March 2021. Third, as regards the damage relating to an infringement of the right to respect for private life and to the destruction of the inquiry file, the ECB rejected, in paragraphs 3.17 to 3.22 and in paragraphs 3.29 to 3.31 of the decision of 16 March 2021, respectively, the claims seeking compensation for that damage.

102Moreover, it must be observed that the applicant does not, in support of the claims seeking compensation for those four heads of damage, rely on any heads of illegality other than those which she raises in support of the claim for annulment of the decision of 16 March 2021. Thus, first, the arguments put forward in support of the claim for compensation for the damage relating to the loss of the opportunity to benefit from the outcome of the administrative inquiry correspond to those put forward in support of the second plea of the claim for annulment, in paragraphs 73 to 75 of the application. Second, it is true that the applicant, in the context of the present claims, specifies the content of the three remaining forms of damage. Nonetheless, she does not, in support of those claims, rely on heads of illegality differing from those which she put forward in support of her claim for annulment, in paragraphs 33 to 46 and 108 of the application.

103In so far as the applicant sought to rely on those heads of illegality when, in the title of her claims for compensation relating to the right to respect for private life and the right to health, she referred to a violation of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, it suffices to note that she fails to explain how the facts on which she relies contravene that provision.

104Therefore, since the claim for annulment of the decision of 16 March 2021 was dismissed as manifestly inadmissible, the claims for compensation for the four forms of damage at issue must also be dismissed.

The forms of damage relating to (i) the sending of documents to a doctor and (ii) the lack of appraisal and decision on the annual salary and bonus review for 2007

105It 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).

106In accordance with the case-law, it is for the applicant to establish that those three conditions are satisfied (judgment of 6 June 2019, Dalli v Commission, T‑399/17, not published, EU:T:2019:384, paragraph 126).

107Since those conditions are cumulative, it is sufficient that the applicant fail to discharge the burden which he or she bears of establishing that one of the conditions is satisfied in order to dismiss an action for damages (see, to that effect, judgment of 9 September 1999, Lucaccioni v Commission, C‑257/98 P, EU:C:1999:402, paragraph 14).

108In the present case, it must be stated that the illegalities alleged in support of the two claims for compensation at issue are based on the contention that the ECB did not properly comply with the annulling judgment.

109The alleged failure properly to comply with the annulling judgment is based, first, on the contention that the ECB did not adequately compensate the applicant for the damage which she had suffered as a result of the sending of the administrative inquiry report to a doctor, that report having been found by the Court to be vitiated by error in the annulling judgment, and which she had suffered as a result of the judgment of 12 December 2012 (BZ v ECB, F‑43/10, EU:F:2012:184), which the Court subsequently set aside (judgment of 23 September 2015, BZ v ECB, T‑114/13 P, EU:T:2015:678). The arguments which the applicant puts forward in relation to that damage are preceded by the title ‘Other implications of the [annulling judgment]’. Those arguments also refer to paragraph 356 of the annulling judgment which, according to the applicant, shows that the ECB used an erroneous inquiry report to her detriment.

110However, the fact of sending the two documents at issue to a doctor does not fall within the scope of the internal administrative inquiry procedure which was the subject matter of the annulling judgment. On the contrary, as the applicant herself acknowledges, the issue of sending the inquiry report to a doctor falls within the scope of the third procedure for recognition of the occupational origin of her disease, which was the subject matter of the judgment of 30 June 2021, BZ v ECB (T‑554/16, not published, EU:T:2021:387).

111It follows that the grant of compensation for the damage arising from the fact of sending the documents at issue to a doctor is not one of the measures required to be taken in order to comply with the annulling judgment. Therefore, the applicant is manifestly incorrect in submitting that the ECB failed to comply properly with the annulling judgment by failing to compensate her for the damage which she claims to have suffered as a result of the sending of those documents to a doctor.

112The alleged failure properly to comply with the annulling judgment is based, secondly, on the contention that the ECB did not compensate the applicant for the damage relating to the lack of appraisal and decision on the annual salary and bonus review for 2007. The applicant attributes that damage to the wait caused by the errors in respect of which the Court, in the annulling judgment, found that the decisions of 24 November 2009 and of 24 March 2010 were vitiated.

113However, in paragraph 3.38 of the decision of 16 March 2021, the ECB stated that that matter did not fall within the scope of complying with the annulling judgment and was to be considered separately. In paragraph 3.39 of the decision of 16 March 2021, the ECB concluded on that basis 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.

114The applicant took note of those elements in the application, but did not dispute them. At most, she argued that the administration had not, at the time when the application was lodged, communicated any decision to her on that matter.

115It follows that the applicant has not proved that the condition relating to the illegality of the allegedly wrongful act committed by the ECB was satisfied.

116The present claims must therefore be dismissed as manifestly lacking any foundation in law, without it being necessary to examine their admissibility.

The damage relating to ‘income loss’

117The applicant claims that the ECB should be ordered to pay compensation corresponding to the ‘full amount of her salary loss [on the basis of] the proper reconstruction of her career’. She states that the amount sought corresponds to the difference between the loss which she claims to have suffered and the compensation which could be granted to her on that basis in the case registered under number T‑500/16. According to the applicant, that loss is greater than the amounts which she sought on that basis in the context of her action in the abovementioned case.

118The applicant also requests that the ECB calculate exactly the ‘material damage [suffered] (income loss)’ with the use of its tools and communicate to her the amount of that damage.

119In that regard, it should be recalled that the European Union owes its officials and servants full compensation for the damage which it has caused to them (see, to that effect, judgment of 9 September 1999, Lucaccioni v Commission, C‑257/98 P, EU:C:1999:402, paragraphs 22 and 28 and the case-law cited).

120In accordance with that principle, the compensation granted to an official or servant of the European Union must make good the damage suffered without it resulting in a loss or profit for him or her.

121According to the case-law, 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).

122In the present case, the applicant stated that she submits the present claim ‘in addition to the [claim] formulated in … [C]ase T‑500/16’. She maintained that that claim was aimed at ‘obtaining only the difference between [the amount sought in that case and the loss calculated by reconstructing her career], should [she] be granted the damage [sought] in [the abovementioned] case … and … [was] thus subordinated to the outcome’ of the latter case.

123In the judgment of 8 December 2021, BZ v ECB (T‑500/16, not published, EU:T:2021:863), the Court dismissed the applicant’s action in its entirety, including in so far as it sought compensation for the material damage connected with the medical expenses allegedly incurred and the loss of salary allegedly suffered. The Court found that the claim for compensation for that damage was based on the applicant’s medical condition allegedly being an occupational disease and on the fact that she had allegedly been the victim of harassment. However, the Court considered that it could not prejudge the measures taken by the ECB to give effect to two judgments which it had delivered on that matter, namely, first, the judgment of 30 June 2021, BZ v ECB (T‑554/16, not published, EU:T:2021:387) and, second, the annulling judgment (judgment of 8 December 2021, BZ v ECB, T‑500/16, not published, EU:T:2021:863, paragraphs 48 and 49).

124According to the Court, the applicant may, as necessary, submit new claims for compensation in the light of such measures. On that basis, the Court concluded that the claim for compensation for the material damage connected with the medical expenses allegedly incurred and the loss of salary allegedly suffered had to be dismissed as premature (judgment of 8 December 2021, BZ v ECB, T‑500/16, not published, EU:T:2021:863, paragraph 50).

125By judgment of 30 June 2021, BZ v ECB (T‑554/16, not published, EU:T:2021:387), the Court annulled the decision of the ECB of 23 July 2014 which closed the procedure for recognition of the occupational origin of the applicant’s disease.

126It follows that it is necessary to know the measures which the ECB took to give effect to the judgment of 30 June 2021, BZ v ECB (T‑554/16, not published, EU:T:2021:387), for the purposes of calculating the extent of the damage to be compensated, otherwise there is a risk of granting the applicant total compensation which might be greater than that which could be owed to her under the principle of full compensation.

127However, the applicant has failed to produce to the Court any information whatsoever on that matter in the context of the present case.

128It follows that the applicant has not discharged the burden which she bears of producing the evidence necessary to establish the extent of the damage for which she seeks compensation in the context of the present claim.

129The present claim must therefore be dismissed as manifestly lacking any foundation in law, without it being necessary to examine its admissibility or to rule on the applicant’s request to the ECB that the latter use its tools to calculate the damage suffered and communicate to her the amount of that damage. Indeed, even if that request could be classified as a request for a measure of organisation of procedure or for a measure of inquiry, it must be stated that it relates exclusively to the amount of the damage suffered and is therefore not capable of remedying the shortcomings identified in paragraph 128 above.

130It follows that the claims for compensation must be dismissed in their entirety as, in part, manifestly inadmissible and, in part, manifestly lacking any foundation in law.

The request that the letter of 17 November 2020 be communicated

131In her observations on the plea of inadmissibility raised by the ECB, the applicant requests that the Court adopt a measure of organisation of procedure requiring the ECB to communicate to her the decision of 17 November 2020 in its entirety.

132In 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 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).

133However, having regard to what has been held in paragraph 44 above and to the grounds for dismissing the claims for annulment and for compensation, the request for a measure of organisation of procedure cannot be granted.

134It follows from all of the foregoing that the action must be dismissed as, in part, manifestly inadmissible and, in part, manifestly lacking any foundation in law.

Costs

135Under 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.

136In the present case, since the applicant has been unsuccessful, she must be ordered to pay the costs, in accordance with the form of order sought by the ECB.

On those grounds,

hereby orders:

1.The action is dismissed.

2.BZ shall pay the costs.

Luxembourg, 18 October 2023.

Registrar

President

—

Language of the case: English.

1Confidential data omitted.