OPINION OF ADVOCATE GENERAL LÉGER delivered on 17 February

Transcription

1 OPINION OF ADVOCATE GENERAL LÉGER delivered on 17 February This case essentially raises two questions, which relate to the delegation of powers within the European Central Bank ('the ECB'). The first question asks whether the Governing Council 2 could lawfully delegate to the Executive Board 3 the power to adopt implementing rules in relation to conditions of employment. The second asks whether the Executive Board was entitled to authorise the Vice-President of the ECB to undertake certain measures of management and, in particular, to take decisions extending the probationary period of newly-recruited members of staff. I Legal framework 3. Article 12.3 of the Protocol on the Statute of the European System of Central Banks and of the European Central Bank annexed to the EC Treaty ('the ESCB Statute') states that 'the Governing Council shall adopt Rules of Procedure which determine the internal organisation of the ECB and its decision-making bodies'. 2. Those questions arise in an appeal brought by a former member of staff of the ECB, Mr Tralli, against the judgment of the Court of First Instance of the European Communities in the case Tralli v ECB Article 36.1 of that document adds: 'the Governing Council, on a proposal from the Executive Board, shall lay down the conditions of employment of the staff of the ECB'. 1 Original language: French. 2 Article 112(1) EC provides that the Governing Council of the ECB is to comprise the members of the Executive Board of the ECB and the Governors of the national central banks. 3 Article 112(2) EC provides that the Executive Board is to comprise the President, Vice-President and four other members: these are to be nominated by common accord of the governments of the Member States, on a recommendation from the Council of the European Union, after it has consulted the European Parliament and the Governing Council of the ECB. 4 Cases T-373/00, T-27/01, T-56/01 and T-69/01 [2002] ECR-SC I-A-97 and II-453 ('the contested decision'). 5. On the basis of Article 36.1 of the ESCB Statute, the Governing Council adopted the Conditions of Employment for Staff of the I

2 TRALLI v ECB European Central Bank'. 5 In their version applicable to the facts in dispute, they provide: 11. (a) Contracts of members of staff may be terminated by the ECB on a reasoned decision of the Executive Board... on the following grounds: '9. (a) Employment relations between the ECB and its members of staff shall be governed by employment contracts issued in conjunction with these Conditions of Employment. The Staff Rules adopted by the Executive Board shall further specify the application of these Conditions of Employment. (i) in the case of continued unsatisfactory performance... ; 10. (a) Employment contracts between the ECB and its members of staff shall take the form of letters of appointment which shall be countersigned by members of staff Members of staff may ask for an administrative review of complaints and grievances.... Members of staff who remain dissatisfied following the administrative review procedure may use the grievance procedure laid down in the Staff Rules. (b) Appointments may be subject to a probationary period in accordance with the provisions laid down in the Staff Rules. The probationary period shall in no circumstances exceed twelve months. Such procedures may not be used to challenge: 5 The conditions were adopted by Decision 1999/330/EC of the European Central Bank of 9 June 1998 as amended on 31 March 1999 (OJ 1999 L 125, p. 32) ('the Conditions of Employment') I

3 (iii) any decision not to confirm the appointment of a member of staff serving a probationary period/ Appointments shall be subject to a probationary period of three months.... In exceptional circumstances the Executive Board may determine a probationary period longer than three months as set out in 2.1.2(a) below. 6. On the basis of Article 12.3 of the ESCB Statute, the Governing Council adopted the Rules of Procedure of the ECB. 6 Article 21.3 of those Rules provides: 'The Conditions of Employment shall be implemented by Staff Rules, which shall be adopted and amended by the Executive Board.' 7. On the basis of that provision and of Article 9(a) of the Conditions of Employment, the Executive Board of the ECB adopted the 'European Central Bank Staff Rules' ('the Staff Rules'). They provide as follows: Where the probationer is prevented by illness, accident, maternity or, in exceptional circumstances, special leave from performing his/her duties for a period of more than one month, the Executive Board may extend the probationary period accordingly. '2.1 Probationary period In addition, the Executive Board may, in exceptional circumstances, The provisions of Article 10(b) of the Conditions of Employment are applied as follows: 6 OJ 1999 L 125, p. 34 ('the Rules of Procedure') (a) extend the probationary period up to a maximum of twelve months; or I

4 TRALLI v ECB (b) extend the probationary period up to a maximum of twelve months and assign the probationer to another function During the probationary period the Executive Board may terminate the contract, giving one months notice, should the probationers performance or suitability prove inadequate.' 10. On 8 September 2000, the appellant received a copy of an internal memo in which the coordinator of security at the ECB asked the appellants superior to extend his probationary period. The memo stated that such an additional probationary period was necessary by reason of the appellants failure to perform his services to the necessary standard and to allow him to undertake additional training. II Facts 11. By letter of 18 September 2000, the ECB notified the appellant of the decision to extend his probationary period until 31 December He was informed that any decision to confirm his appointment depended on the standard of his performance during the extended probationary period. 8. On 20 June 2000, Mr Tralli was appointed by the ECB as a security guard. His letter of appointment stated that his contract of employment was subject to a probationary period of three months. 9. On 21 August 2000, the appellants superior notified him that his performance failed to meet the standard required for the post in question. The inadequacy of his performance was also the subject of an interview held on 1 September By letter of 29 November 2000, the appellant was informed of the Executive Boards decision to terminate his contract with effect from 31 December The ground for that decision was that, even during the extended probationary period, the appellant's performance had not improved. 7 Otherwise referred to as 'the decision to extend the probationary period'. 8 Otherwise referred to as 'the decision to dismiss'. I

5 III Procedure before the Court of First Instance and the contested judgment 13. By application lodged at the Registry of the Court of First Instance on 12 December 2000, Mr Tralli brought an action seeking, inter alia, the annulment of the decision to dismiss (Case T-373/00). 15. Those applications were considered together by the Court of First Instance. It decided to dismiss the action in Case T-373/00 and held that there was no longer any need to adjudicate in Cases T-27/01, T-56/01 and T-69/01. IV The appeal 14. Mr Tralli also brought three other actions seeking, inter alia: 16. By application lodged at the Registry of the Court of Justice on 26 August 2002, Mr Tralli brought the present appeal. annulment of the decision of the President of the ECB rejecting the appellants complaint against the decision to extend the probationary period (Case T-27/01); a declaration that the President of the ECB had unlawfully refrained from defining his position in relation to the appellants request for the decision to dismiss to be reviewed (Case T-56/01), and 17. It seeks the annulment of the contested judgment and of the decisions of the ECB extending the probationary period and to dismiss him. Mr Tralli also asks the Court to order the ECB to pay him, for the period after 31 December 2000, his basic salary, amounting to EUR a year, together with allowances and other items of remuneration specified in the Conditions of Employment. Lastly, Mr Tralli asks that the ECB be ordered to pay the costs. annulment of the decision of the President of the ECB rejecting the appellants complaint against the decision to dismiss (Case T-69/01). 18. For its part, the ECB contends that the appeal should be dismissed and that the appellant should be ordered to pay the costs. I

6 TRALLI v ECB 19. In support of the forms of order sought by him, Mr Tralli relies on three grounds of appeal, which I shall consider in turn: Court of First Instance ruled as follows in relation to that plea: contravention of the rules relating to delegation of powers, contravention of Articles and of the Staff Rules, and '43 According to the applicant, the Staff Rules have no basis in law. They comprise rules governing the members of staff of the ECB and should accordingly have been adopted, on the basis of Article 36.1 of the ESCB Statute, by the Governing Council on a proposal from the Executive Board, and not by the Executive Board, which had no powers in that field. contravention of the rules relating to liability for costs. A The first ground of appeal, alleging contravention of the rules relating to delegation of powers 20. By his first ground of appeal, the appellant essentially submits that the Court of First Instance contravened the rules relating to delegation of powers. 21. At first instance, the appellant had raised a plea of illegality against the Staff Rules. The 44 The short answer to that point is that, in the circumstances which gave rise to the judgment in X v ECB (Case T-333/99 [2001] ECR II-3021; [2001] ECR-SC I- A-199 and II-921), a plea of illegality having the same basis as that relied on by the applicant in the present case was raised before the Court of First Instance. In that judgment, the Court of First Instance essentially held, in paragraphs 96 to 109, that the Staff Rules are not vitiated by the illegality complained of by the applicant, inasmuch, in particular, as, under Article 21.3 of the Rules of Procedure of the ECB, the Governing Council has delegated to the Executive Board the power to determine the rules for the implementation of the Conditions of Employment, that is to say, the Staff Rules.' I

7 22. Mr Tralli maintains that, by rejecting that plea of illegality, the Court of First Instance erred in law. He puts forward three sets of arguments in support of his position. 23. First, Mr Tralli submits that under Article 36.1 of the ESCB Statute the Executive Board of the ECB has no power to adopt rules relating to members of staff. That power belongs to the Governing Council, with the Executive Board having the right only to make proposals in that regard. Furthermore, the Governing Council has no authority to delegate its power to the Executive Board, inasmuch as Article 12.3 of the ESCB Statute and the concept itself of 'Rules of Procedure' do not permit such delegation. Executive Board failed to have regard to Article 21.3 of the Rules of Procedure, inasmuch as it did not simply adopt measures implementing the Conditions of Employment, but adopted what were truly autonomous rules. Those provisions permit a unilateral extension of the probationary period, while Article 10(b) of the Conditions of Employment provides only for such a period to be the subject of agreement under contract. Furthermore, they introduce a criterion for dismissal during that period, linked to the inappropriate conduct or performance of the employee, which differs from that laid down under Article 11(a)(i) of the Conditions of Employment. 24. Secondly, Mr Tralli contends that the Court of First Instance was wrong to hold that the Governing Council had lawfully delegated its power to adopt rules relating to members of staff to the Executive Board. It is clear from the case-law that Community law requires that powers be delegated expressly. In the present case, the Court of First Instance had simply assumed that there was an implied power of delegation under Article 21.3 of the Rules of Procedure' Lastly, Mr Tralli states that in adopting Articles and of the Staff Rules the 26. In my opinion, the starting point for any analysis is to be found in Meroni v High 10 Authority. 27. In that case, the appellant complained that the High Authority had delegated certain of its powers to 'Brussels agencies', that is to say, private agencies, established outside the provisions of the ECSC Treaty. The appellant maintained that Article 8 of that Treaty, which required the High Authority to ensure that the objectives set in the Treaty were attained, did not allow for delegation. 9 Appeal, point Case 9/56 Meroni v High Authority [1958] ECR 133. See also, to that effect, X vecb (cited above), paragraphs 102 to 104. I

8 TRALLI v ECB 28. The Court rejected that argument, reasoning as follows: 1 1 '... the possibility of entrusting bodies established under private law, having a distinct legal personality and possessing powers of their own, the task of putting into effect certain "financial arrangements common to several undertakings" as mentioned in subparagraph (a) of Article 53 [of the ECSC Treaty] cannot be excluded. 29. As one writer has observed, 12 the Court therefore took the view that the provisions of the ECSC Treaty granting legislative powers to the High Authority formed a sufficient legal basis to allow it to delegate certain powers to private bodies having a distinct legal personality. The view may therefore be taken that the delegation of powers is lawful under Community law where, as in the present case, there is no provision which expressly prohibits it. 13 The financial arrangements made by the High Authority itself in application of subparagraph (b) of the same article must serve the same purposes as those authorised in application of subparagraph (a). 30. Accordingly, I am of the opinion that, as a matter of principle, the Governing Council was entitled to delegate certain of its powers to the Executive Board of the ECB. The appellants first argument, relating to the absence of a power to delegate, should therefore be rejected. Therefore, it must be possible for those arrangements to be similar in form and in particular to use the aid of bodies having a distinct legal personality. Hence the power of the High Authority to authorise or itself make the financial arrangements mentioned in Article 53 of the [ECSC] Treaty gives it the right to entrust certain powers to such bodies subject to conditions to be determined by it and subject to its supervision'. 11 Meroni, at pp. 172 and As regards the rules applying to the delegation of powers, Meroni shows that delegation must satisfy several conditions if it is to be lawful. Those conditions, which constitute the normal rules applying to the 12 See K. Lenaerts, 'Regulating the regulatory process: "delegation of powers" in the European Community', European Law Review, 1993, p. 23 (at pp. 40 to 42). 13 See also, to that effect, X v ECB, paragraph 102. As regards legal literature, see, inter alia, K. Lenaerts, cited above, pp. 41 and 42, and Y. Gautier, La délégation en droit communautaire, thesis presented and argued on 7 January 1995, pp. 357 and 358. I

9 delegation of powers under law, 1 4 are as follows: Community the delegating authority may not confer on the entity receiving the delegation powers different from those which the delegating authority itself received; 15 delegation of a discretionary power, implying a wide margin of discretion, replaces the choices of the delegator by those of the delegate and thus brings about an actual transfer of responsibility. 19 In certain fields, such as the common agricultural policy, the Court has held, however, that the concept of 'implementation' must be given a wide interpretation, having regard to the scheme of the Treaty and practical considerations. 20 the exercise of the powers conferred on an entity receiving the delegation must be subject to the same conditions as those to which it would be subject if the delegating authority was exercising them directly, particularly as regards the requirements to state reasons and to publish; In the present case, Mr Tralli considers that the last two requirements set out above are not satisfied. He maintains, in his second and third arguments, that the disputed delegation was not made expressly and that Articles and of the Staff Rules go beyond the mere 'implementation' of the Conditions of Employment. a delegation of powers cannot be presumed: even when empowered to delegate its powers the delegating authority must take an express decision transferring them; 17 delegation may relate only to executive powers, which must be clearly defined: 18 the Court has ruled that the 14 For a discussion of the conditions applying to delegation, see Y. Gautier, cited above, p. 418 et seq. 15 Meroni, p Ibidem, pp. 149 and Ibidem, p Ibidem, pp. 151, 152 and As regards the second argument, it suffices to read the Rules of Procedure to determine that it is manifestly unfounded. At Article 21.3 of the Rules of Procedure, the 19 On the distinction between rules which are essential to the subject-matter envisaged and those which are 'of an implementing nature' for the purposes of Articles 202 and 211 EC, see, inter alia, Case 25/70 Köster [1970] ECR 1161, paragraph 6, and Case C-240/90 Germany v Commission [1992] ECR I-5383, paragraphs 36 and See, inter alia, Case 23/75 Rey Soda [1975] ECR 1279 and Joined Cases 279/84, 280/84, 285/84 and 286/84 Rau and Others v Commission [1987] ECR 1069, paragraph 14, together with Joined Cases T-64/01 and T-65/01 Afrikanische Frucht-Compagnie and Internationale Fruchtimport Weichert v Council and Commission [2004] ECR II-521, paragraph 118. I

10 TRALLI v ECB Governing Council, which has the power to adopt the Staff Rules, expressly stated that 'the Conditions of Employment shall be implemented by Staff Rules, which shall be adopted and amended by the Executive Board'. 36. As is mentioned above, Article 10(b) of the Conditions of Employment states that appointments may be subject to a probationary period' which shall in no circumstances exceed twelve months'. The Executive Board provided at Article of the Staff Rules that it 'may in exceptional circumstances extend the probationary period up to a maximum of twelve months'. Article of the Staff Rules thus simply lays down implementing provisions relating to the probationary period while at the same time complying with the maximum period laid down by the Governing Council. 34. The Governing Council thus expressly delegated the power to adopt the conditions governing the implementation of the Conditions of Employment. Contrary to what the appellant contends, the Court of First Instance in the contested judgment did not simply assume the presence of an implied delegation under Article 21.3 of the Rules of Procedure' As regards the third argument, I am of the view that Articles and of the Staff Rules do not affect the scope of the relevant provisions of the Conditions of Employment. 37. In that regard, the fact that the Executive Board may unilaterally extend the probationary period does not make Article of the Staff Rules unlawful. In its judgment in Pflugradt v ECB, 22 the Court expressly held that the contractual nature of the employment relationship between the ECB and its staff does not mean that its bodies might not adopt measures unilaterally in the light of the public interest responsibilities with which it is entrusted. As the power to adopt such measures is thus contained in the Conditions of Employment, it cannot be the case, as the appellant maintains, that, by providing for a unilateral extension of the probationary period in exceptional circumstances, Article of the Staff Rules impinged upon the nature or the scope of the Conditions of Employment Appeal, point As regards Article of the Staff Rules, as stated above it authorises the Executive Board to terminate the contract during the probationary period in cases 22 Case C-409/02 P Pflugradt v ECB [2004] ECR I-1873, paragraphs 33 to See also, in that regard, the reasons given by the Court of First Instance in the contested judgment (at paragraphs 50 to 52). I

11 where the probationers 'performance or suitability prove inadequate'. It is true that suitability' is not mentioned, as such, in Article 11(a)(i) of the Conditions of Employment, which provides that contracts of members of staff may be terminated by the ECB... in the case of continued unsatisfactory performance'. 39. However, as with unsatisfactory performance, lack of suitability relates to the ability of the probationer to carry out his duties in a satisfactory manner. Furthermore, the concept of suitability is implicit in the concept of a probationary period, since the latter is always undertaken in order to determine the probationer's ability to perform the duties for which he was recruited. It cannot, therefore, be contended that, by providing for the possibility of terminating the contract in cases of lack of suitability, Article of the Staff Rules went beyond the mere implementation of the Conditions of Employment. B The second ground of appeal, alleging contravention of Articles and of the Staff Rules 42. The second ground of appeal is relied on by the appellant in the alternative, in the event that the Court accepts that Articles and of the Staff Rules are lawful. It is directed against paragraphs 48 to 83 of the contested judgment. 43. In those paragraphs, the Court of First Instance held that the decisions extending the probationary period and to dismiss did not contravene the Conditions of Employment and the Staff Rules, for the following reasons: 40. It follows from the above that, in the provisions mentioned, the Executive Board clearly remained within the limits of the implementing powers which the Governing Council entrusted to it in Article 21.3 of the Rules of Procedure. '48 First, the applicant argues that the decision to extend the probationary period carries the signatures of a director and a head of unit of the Directorate of Personnel, whereas, under Article of the Staff Rules, decisions concerning the extension of the probationary period must be taken by the Executive Board of the ECB. 41. The appellant's first ground of appeal should therefore be rejected. 49 The Court observes that, on request by the Court, the ECB produced, first, an I

12 TRALLI v ECB extract of the minute of the meeting of the Executive Board of 16 March 1999, which shows that, at that meeting, that body delegated the power to take decisions extending the probationary period to the Vice-President of the ECB and, secondly, the proposal to extend the applicants probationary period of 13 September 2000 on which the Vice-President of the ECB indicated, in manuscript, his agreement on 15 September Therefore, the decision to extend the probationary period was adopted in accordance with the applicable procedural requirements The defendants reply in that regard is essentially that the applicants probationary period, as initially agreed upon, largely fell during the summer holiday period and that, because of the reduced level of activities at the ECB during that period, the applicants ability to occupy that post could not be established. It was necessary to do so inasmuch as the applicant had shown certain failings in his conduct during the probationary period initially agreed upon. 54 Thirdly, the applicant claims that the defendant could not base its decision to extend the probationary period on the second subparagraph of Article of the Staff Rules. He states that, under that provision, the probationary period may be extended only in "exceptional circumstances". According to the applicant, such "exceptional circumstances" could exist only where a long-term obstacle to performing his duties directly undermines the achievement of the objective of the probationary period. In his opinion, such circumstances did not exist in this case. Inadequacy of performance, alleged on a general basis, cannot of itself constitute such an exceptional circumstance. 56 The Court considers that the mere fact that part of the probationary period in the present case fell during the holiday months cannot be held to be exceptional within the meaning of Article of the Staff Rules. On the contrary, that point was wholly foreseeable by the administration at the time of recruitment. However, the ECB is entitled to take the view that that condition is satisfied where, for objectively justified reasons, the administration has doubts as to the ability of the probationer to occupy the post for which he was recruited but, partly because of a lower level of activity during the summer holiday months, is not yet in a position to reach a final opinion on the question whether the appointment of the probationer should be confirmed or his contract should be terminated at the end of the probationary period. I

13 57 In the present case, it is clear from the papers before the Court and in particular from the note of 8 September 2000 that the administration was not in a position, during the probationary period initially agreed upon, to be certain of the applicants ability either to the extent of confirming the applicant in his post or of being so clearly dissatisfied as to lead it to terminate the contract. Nevertheless, the papers show that the administration had doubts during the probationary period initially agreed upon as to the applicants ability to perform his duties and in particular to master the ECB's security system, without at the same time being in a position to conclude definitively that his contract should be terminated during that initial probationary period. The presence of those doubts on the part of his superiors was, moreover, confirmed by the applicant himself, in so far as that note shows that he expressed a desire to improve his performance. In those circumstances, the defendant was entitled to take the view that it was faced with exceptional circumstances, within the meaning of the second subparagraph of Article of the Staff Rules, which allowed it to extend the applicants probationary period. 61 In the light of the above, it should be held that the applicant has not succeeded in establishing that the decision to extend the probationary period was unlawful [As regards the decision to dismiss], the applicant essentially argues that he was given no opportunity during the probationary period to adjust to the requirements of the regular security service, that he had not been allowed to learn how to carry out his duties without being put under pressure but that he had immediately been integrated in the normal team arrangements and that he had not been given any training in that regard. In particular, with respect to the criticisms made of him relating to failings in the use of the ECB's information technology system, he states that he received only inadequate training in the matter during his probationary period. 69 The Court of First Instance considers that a decision to dismiss at the end of the probationary period must be annulled if the probationer has not been allowed to complete his probationary I

14 TRALLI v ECB period under normal conditions (see, in relation to the Staff Regulations, Case 3/84 Patrinos v ECOSOC [1985] ECR 1421, paragraphs 20 to 24, and Case T-568/93 Correia v Commission [1994] ECR-SC I-A-271 and II-857, paragraph 34). 70 It is accordingly necessary in the present case to consider whether the applicant was allowed to complete his probationary period under normal conditions. experience, had been allocated to him as "godfathers". At the hearing, the applicant also confirmed that those colleagues had in fact given him a certain amount of basic instruction in his future duties. As regards the applicants allegation that those instructions were insufficiently precise, suffice it to say that he provided no actual evidence in that respect which would allow the Court to reach a conclusion as to why such a system of tutelage did not fulfil its purpose. 71 In that regard, it is clear from the papers before the Court and, in particular, from the note sent by the coordinator of security at the ECB on 8 September 2000 to the applicants superior, on which the latter confirmed in manuscript that he had been made aware of its contents, that, during the first four weeks of his duties at the ECB, the applicant benefited from a training programme on the principal tasks that would be allocated to him. The objectives and content of that course had been laid down by the supervisor of the ECB security guards, who had set up a training plan in that regard dated 29 June 2000, which was lodged with the Court at its request. During that period, as the applicant confirmed in person at the hearing, he attended a certain number of presentations on the operation of different items of work equipment involved in the ECB's security system and was accompanied in his daily work by two experienced colleagues who, because of their specialised 72 Furthermore, it is clear from a note drawn up for the purposes of these proceedings by the assistant supervisor of the ECB guards on 21 December 2001, the contents of which were confirmed by the applicant himself at the hearing, that, from 23 to 25 August 2000, he received additional training on various security systems, including certain information technology systems. Lastly, it is clear from that note, and was confirmed by the applicant in person at the hearing, that, after the extension of the probationary period, he attended two days of training in information technology, one day of which took place during the applicants annual leave, the objective of which was to look again at the operation of those different systems. The applicant once again raises the criticism that that training was inadequate, but at the same time provides no actual evidence which would allow the Court to reach a conclusion as to why that training did I

15 not allow him to learn the requirements of his work and to receive training appropriate to his needs. 73 It follows from the above that the ECB had established for newly-recruited members of staff, including the applicant, a training programme which should have allowed the applicant to know, during the probationary period of six months, the nature of the duties he would have to perform and the contribution he was expected to provide. In those circumstances, there is nothing to support the conclusion that the applicant was not given an opportunity to complete his probationary period under normal conditions. 45. In the first part, Mr Tralli submits that the decision to extend the probationary period was adopted in contravention of Article of the Staff Rules. According to him, contrary to what the Court of First Instance decided at paragraph 49 of the contested judgment, the power to extend his probationary period was vested in the Executive Board alone and could not be delegated to the Vice-President of the ECB. 46. It should be noted that, at paragraph 49 of the contested judgment, the Court of First Instance held that, on the basis of the papers before it, the Executive Body had delegated to the Vice-President of the ECB the power to adopt decisions extending the probationary period of newly-recruited members of staff at its meeting of 16 March The applicants argument thus requires that the validity of that delegation be examined. 83 It follows that the plea alleging contravention of the Conditions of Employment and the Staff Rules together with the principle of proportionality must be rejected in its entirety.' 47. In that regard, I am of the view that the principles identified in the case-law relating to delegations granted by the Commission of the European Communities to its members are relevant. 44. The second ground of appeal seeks to challenge that assessment. It comprises five parts, which I shall consider in turn. 48. In my opinion, delegation of this kind represents a particular type of delegation of powers, which is justified by the powers of internal organisation' which the Community I

16 TRALLI v ECB institutions and bodies established by the Treaty are recognised to possess, 24 and which, unlike other types of delegation, is generally restricted to the power to adopt decisions on an individual basis. The conditions laid down by the judgment in Mer oni thus appear to be entirely applicable to such arrangements for delegation. enable it to perform its duties'. 28 According to the Court, the need to ensure that the decision-making body is able to function corresponds to a principle inherent in all institutional systems and which is set out... in Article 16 of the Merger Treaty, according to which "the Commission shall adopt its rules of procedure so as to ensure that both it and its departments operate"' It is the settled case-law of the Court 25 that the Commission may, without infringing the principle of collegiality which governs its operations, 26 authorise its members to take certain decisions in its name. According to the Court, that system of delegation does not have the effect of divesting the Commission of its power to take decisions, since the decisions taken by the member are taken in the name of the Commission, which assumes full responsibility for them. 27 Furthermore, the Court has held that such a system is necessary, having regard to the considerable increase in the number of decisions which the Commission is required to adopt, to 50. According to case-law, such a system of delegation may, however, relate only to measures of management or administration, and excludes all decisions of principle. 30 Delegation may thus relate to a decision to proceed to carry out investigations under Article 14(3) of Regulation No 17, 31 a decision to discontinue aid, 32 or a decision requiring default interest to be paid following a judgment imposing a fine. 33 By contrast, delegation cannot relate to a decision finding an infringement of competition law, 34 nor a decision to issue a reasoned opinion or to 24 It is well-established that each Community institution and body enjoys a broad discretion in the organisation of its departments: as regards the Community institutions, see inter alia Joined Cases 109/63 and 13/64 Muller v Commission [1964] ECR 1293 and Case 69/83 Lux v Court of Auditors [1984] ECR 2447, paragraph 17, and as regards Community bodies established by the Treaty, see inter alia Case C-15/00 Commission v EIB [2003] ECR I-7281, paragraph 67, and Joined Cases T-178/00 and T-341/00 Pflugradt v ECB [2002] ECR II-4035; ECR-SC I-A-205 and II-1039, confirmed on appeal by judgment of 14 October 2004 in Case C-409/02 P Pflugradt v ECB. 25 See, inter alia, Case 5/85 AKZO Chemie v Commission [1986] ECR 2585, paragraph Under Article 17 of the Treaty of 8 April 1965 establishing a single Council and a single Commission of the European Communities (otherwise known as 'the Merger Treaty'). 27 AKZO Chemie v Commission, paragraph Ibidem, paragraph Ibidem. 30 Ibidem. 31 Council Regulation of 6 February 1962, First Regulation implementing Articles [81] and [82] of the Treaty (OJ, English Special Edition , p. 87). See Joined Cases 46/87 and 227/88 Hoechst v Commission [1989] ECR 2859, paragraphs 44 to 46, and Joined Cases 97/87, 98/87 and 99/87 Dow Chemical Ibérica and Others v Commission [1989] ECR 3165, paragraph Case T-254/99 Maja v Commission [2003] ECR II-757, paragraph Case T-275/94 CB v Commission [1995] ECR II-2169, paragraph Case C-137/92 P Commission v BASF and Others [1994] ECR I-2555, paragraph 71. I

17 bring an action for a declaration of failure to fulfil obligations under Article 226 EC In my opinion, that case-law, which relates to the system of delegation instituted within the Commission, is entirely capable of being applied to the present case. 52. Since delegation is restricted to measures of management and administration, it does not have the result of divesting the Executive Body of its power to take decisions: the decisions to extend the probationary period taken by the Vice-President of the ECB were taken in the name of the Executive Body, which assumes full responsibility for them. Furthermore, the need to ensure that the decision-making body is able to perform its duties is laid down, as it is for the Commission, in a provision of primary law, in Article 12.3 of the ESCB Statute, which provides that 'the Governing Council shall adopt Rules of Procedure which determine the internal organisation of the ECB and its decision-making bodies'. necessary to extend the probationary period of a newly-recruited member of staff. The Vice-President of the ECB thus possesses no powers in relation to 'decisions of principle' within the meaning of the case-law cited above. 54. In those circumstances, I am of the view that the Executive Body was entitled to authorise the Vice-President of the ECB to take decisions to extend the probationary period of newly-recruited members of staff and that the first part of the ground of appeal is accordingly unfounded. 55. In the second part, Mr Tralli argues that Article of the Staff Rules is contrary to 'higher rules of Community law' and in particular to the principle that the European Communities are a Community subject to the rule of law'. 36 He maintains that, by referring to vague criteria, such as that of 'exceptional circumstances', which fail to specify the manner in which the Conditions of Employment are to be implemented, the disputed provision may lead to arbitrary measures. 53. It is not contested in the present case that the disputed delegation relates only to measures of management and administration. The Vice-President of the ECB is simply required to decide whether or not it is 56. Regardless of the fact that that argument concerns the lawfulness of Article of the Staff Rules and should accordingly have 35 Case C-191/95 Commission v Germany [1998] ECR I-5449, paragraph Appeal, point 44. I

18 TRALLI v ECB been raised under the first ground of appeal, I consider that it is manifestly unfounded. 57. It is established that concepts such as those of exceptional circumstances' which are used in Article of the Staff Rules represent what are known as legal standards'. These are flexible rules which have as their basis an intentionally indeterminate yardstick and which thus show the desire of the legislature to leave to the authorities concerned whether they be administrative or judicial the task of defining their scope on a case-by-case basis, so that their application may be best adapted to the facts before those authorities. Legal standards are known to most, if not all, legal systems and, in particular, to the Community legal order. 37 In such cases, the risk of arbitrary decisions is, as in all other cases, avoided by the fact that the decision in question is subject to judicial review. 59. In the third part, the appellant contests the determination by the Court of First Instance that the existence of doubts as to the probationer's abilities may represent an 'exceptional circumstance' justifying an extension of his probationary period under Article of the Staff Rules. He maintains that the whole point of the probationary period is to determine whether such doubts exist, and the Court of First Instance has accordingly reversed the rule and the exception. 60. In that regard, it should be pointed out, first of all, that case-law states that the ECB enjoys wide discretion in the organisation of its services and in the assignment of its staff to perform its public service responsibilities Accordingly, I am of the view that the second part of the ground of appeal is manifestly unfounded. 37 See, amongst numerous examples, the concepts of 'customer belonging to that area' in the context of a commercial agency contract in Case C-104/95 Kontogeorgas [1996] ECR I-6643, paragraphs 25 to 27, of 'exceptional circumstances' constituting exceptions to the principle of separate valuation of items in the assets and liabilities of a company's balance sheet in Case C-275/97 DE + ES Bauunternehmung [1999] ECR I- 5331, paragraphs 31 and 32, and of 'charges' in the field of legislation relating to indirect taxation levied on increases of share capital in Case C-206/99 SONAE [2001] ECR I-4679, paragraphs 22 to It should next be noted that, in the Community institutions and bodies, the probationary period, or stage, is generally sufficient to allow the decision-making authority to achieve certainty as to the probationer's ability to occupy the post for which he was recruited. That certainty may take the form either of a confirmation of the probationer in his post or of a decision to terminate his contract or appointment. In 38 Pflugradt, paragraph 54, confirmed on appeal by the Court of Justice. I

19 reality, cases where, at the end of the trial or probationary period, the decision-making authority still has doubts of such a nature that it must or should extend the probationary period of the party concerned are relatively uncommon. 12. First, the [ECB] relies on the fact that the appellant took up his duties on 1 July 2000 [and that] a large part of his probationary period [accordingly] took place during a [holiday] period. 62. Accordingly, it has not been established that the Court of First Instance erred in law in considering that the existence of doubts as to a probationer s ability could represent an 'exceptional circumstance' justifying an extension of his probationary period under Article of the Staff Rules. 13. Secondly, the [ECB] has taken into account the fact that, before taking up his duties at the ECB, the appellant had been employed for 14 years by a private security company. It therefore concluded from that that the appellant's failure to perform was principally to be explained by possible difficulties due to the new work at the ECB and to the need to adjust to new working conditions, and that an extension of the probationary period would give the appellant an additional opportunity to demonstrate his qualities and his ability to adjust ' In the fourth part, the appellant contests the finding by the Court of First Instance that his probationary period was extended by reason of doubts as to his ability to perform his duties. He points out that the ECB stated in its rejoinder in Case T-373/00 that the appellants probationary period was extended because it occurred during a holiday period. 65. In those circumstances, the appellants argument relating to the appraisal of the terms of the ECB's rejoinder in Case T-373/00 is, on any analysis, manifestly unfounded. 64. Irrespective of questions as to the admissibility of this complaint, it is sufficient to observe that, in its rejoinder, the ECB put forward two sets of arguments, as follows: 66. Lastly, in the final part, the appellant puts forward various arguments seeking to show that, contrary to what the Court of 39 Author's emphasis. I

20 TRALLI v ECB First Instance held at paragraphs 70 to 73 of the contested judgment, he was not allowed to complete his probationary period under normal conditions. 67. In that regard, it should be pointed out that it is settled case-law 40 that the Court of Justice has no jurisdiction to establish the facts or, in principle, to examine the evidence which the Court of First Instance accepted in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the Court of First Instance alone to assess the value which should be attached to the evidence produced to it. That appraisal does not therefore constitute, save where the clear sense of the evidence has been distorted, a point of law which is subject to review by the Court of Justice. 69. In those circumstances, the last part of the ground of appeal is manifestly inadmissible. In so far as the appellant has not established, or even seriously maintained, that the Court of First Instance distorted the facts and evidence produced to it, its assessment of the methods used to ensure the training of newly-recruited members of staff represents an appraisal of the facts and evidence which cannot be challenged in this appeal. 70. On the basis of the above considerations, I therefore propose that the Court of Justice reject the second ground of appeal in its entirety. 68. In the present case, the Court of First Instance held, on the basis of the material presented in the papers before that Court, that 'there is nothing to support the conclusion that the applicant was not given an opportunity to complete his training period under normal conditions'. 41 C The third ground of appeal, alleging contravention of the rules relating to liability for costs 71. The last ground of appeal relates to the determination of the Court of First Instance on the allocation of the costs of the proceedings. That determination is set out as follows in the contested judgment: 40 See, by way of recent examples, Case C-122/01 P T. Port v Commission [2003] ECR I-4261, paragraph 27, and order of 9 July 2004 in Case C-116/03 Fichtner v Commission [2004] not published in the ECR, paragraph Contested judgment, paragraph 73. '95 Under Article 87(2) of the Rules of Procedure of the Court of First Instance, the unsuccessful party is to be ordered I

21 to pay the costs if they have been applied for in the successful party's pleadings. However, under Article 88 of those Rules, in proceedings between the Communities and their servants, the institutions are to bear their own costs. 96 In those circumstances, each of the parties will bear their own costs incurred in Case T-373/ By contrast, in Cases T-27/01, T-56/01 and T-69/01, the defendant asks the Court of First Instance to order the applicant to pay the whole of the costs, including the costs of the defendant, under the second subparagraph of Article 87(3) of the Rules of Procedure, and by way of derogation from Article 88 of those Rules. It considers that the bringing of those actions constitutes an abuse of rights. The costs incurred by it by reason of those actions must accordingly be considered to be vexatious within the meaning of the second subparagraph of Article 87(3) of the Rules of Procedure. 98 In Cases T-27/01 and T-69/01, the applicant asks, for his part, that his own costs be borne by the defendant under the second subparagraph of Article 87(3) of the Rules of Procedure, even if those actions were to be dismissed as inadmissible. In that regard, he pleads, in essence, that he was required to initiate those actions in order to safeguard his rights. He maintains that under Articles 41 and 42 of the Conditions of Employment, he was entitled and required to initiate prelitigation review procedures against the decisions to extend the probationary period and to dismiss before bringing an action before the Court of First Instance against those decisions. As early as the administrative procedure, the defendant had disputed that approach. The defendant was responsible for that uncertainty. Accordingly, the applicant maintains that he was required to bring simultaneous actions in Cases T-373/00, T-27/01 and T-69/ The Court of First Instance considers, contrary to what the applicant contends, that it is wholly clear from Article 41 (iii) of the Conditions of Employment that decisions to extend the probationary period and to dismiss during the probationary period can never be the subject of a request for pre-litigation review and complaint. The object of each of those decisions was "not to confirm the appointment of a member of staff serving a probationary period" in terms of that provision. I

22 TRALLI v ECB 100 Therefore, the bringing of the actions in Cases T-27/01 and T-69/01 obliged the defendant to incur costs unreasonably. 103 Accordingly, rather than ordering the defendant to pay the costs incurred by the applicant, as the latter requests, the applicant should be ordered to pay one third of the costs incurred by the defendant in Cases T-27/01, T-56/01 and T-69/01.' 101 As regards Case T-56/01, lodged with the Registry of the Court of First Instance on 13 March 2001, the applicant brought that action for a declaration of failure to act by reason of the lack of a response to the complaint made on 5 February 2000, where, first, that complaint was the subject of an implied rejection under Article of the Staff Rules one month after the complaint was raised and, secondly, the President of the ECB rejected the applicants complaint on 12 March Mr Tralli maintains that the contested judgment is vitiated by an error of law in that regard. He argues that, contrary to what the Court of First Instance held, the actions in Cases T-27/01, T-56/01 and T-69/01 were brought on proper grounds. 102 Therefore, without it being necessary to consider whether the action must be dismissed as being inadmissible by reason of failure to give formal notice before bringing an action for a declaration of failure to act, the fact remains that, when the action was initiated in Case T-56/01, or at the very latest during the days immediately following that date, the applicant knew that the defendant had defined its position for the purposes of the second paragraph of Article 232 EC. However, he did not take the appropriate measures to avoid the defendant incurring costs unreasonably in relation to that action. 73. In that regard, it should be pointed out that the second paragraph of Article 58 of the EC Statute of the Court of Justice states that no appeal shall lie regarding only the amount of the costs or the party required to pay them'. Moreover, the Court has held that where all the other pleas put forward in an appeal have been rejected, any plea challenging the decision of the Court of First Instance on costs must be rejected as inadmissible by virtue of [the provision mentioned above]' See Joined Cases C-302/99 P and C-308/99 P Commission and France v TF1 [2001] ECR I-5603, paragraph 31, and Joined Cases C-57/00 P and C-61/00 P Freistaat Sachsen and Others v Commission [2003] ECR I-9975, paragraph 124, together with the order of 13 December 2000 in Case C-39/00 P SGA v Commission [2000] ECR I-11201, paragraph 77. See also, to that effect, Case C-396/93 P Henrichs v Commission [1995] ECR I-2611, paragraph 66, and the order of 13 December 2000 in Case C-44/00 P Sodima v Commission [2000] ECR I-11231, paragraph 93. I