Judgment_paragraph 5 · European Central Bank v Maria Concetta Cerafogli (T-787/14 P)

5The background to the dispute is set out in paragraphs 5 to 16 and 19 of the judgment under appeal, as follows:5 On 28 October 2010, the [Civil Service Tribunal] delivered judgment in three disputes between the applicant and the ECB (Cerafogli v ECB, F‑84/08, EU:F:2010:134; Cerafogli v ECB, F‑96/08, EU:F:2010:135; and Cerafogli v ECB, F‑23/09, EU:F:2010:138, “the judgments of 28 October 2010”).6 By letter of 20 May 2011 (“the request of 20 May 2011”), the applicant asked the ECB to send her the following documents, pursuant to Decision ECB/2004/3:I) [a]ll the Executive Board Decisions — and the documents submitted to the Board — related to the [judgments of the] Tribunal ... in [C]ase F‑96/08 and [C]ase F‑84/08 including any related internal documents, memo[randa] and/or minutes;II) [t]he Executive Board decisions — and the documents submitted to the Board — of allocating to [the applicant] a new [annual salary and bonus review] for the years 2005 and 2006, including any related internal documents, memo[randa] and minutes;III) [a]ll the Executive Board Decisions — and the documents submitted to the Board — related to the Tribunal [C]ases F‑96/08, F‑84/08 and ... F‑23/09 prior to the [judgments of the] Tribunal ... of 28 October 2010 including any related internal documents, memo[randa] and/or minutes.”7 According to the nature of the documents requested by the applicant, the ECB examined the request of 20 May 2011 either in the light of Decision ECB/2004/3 or in the light of the rules applicable to requests from ECB staff and, thus, made two separate decisions on 21 June 2011.8 The first decision, signed by the Director-General of the DG for Secretariat and Language Services and the head of the Secretariat Division within that Directorate General, was made on the basis of Decision ECB/2004/3 (“the decision based on Decision ECB/2004/3”). By that decision, the ECB sent the applicant three documents relating to the Executive Board’s decision of 24 May 2011 concerning the wage policy for 2008. However, the ECB refused to send her the preparatory documents connected with that decision, citing Article 4(3) of Decision ECB/2004/3, which prohibits access “to a document containing opinions for internal use as part of deliberations and preliminary consultations within the ECB ... even after the decision has been taken, unless there is an overriding public interest in disclosure”. It also refused to produce the minutes of the relevant meetings of the Executive Board on the basis of Article 4(1)(a) of Decision ECB/2004/3, which protects “the public interest as regards ... the confidentiality of the proceedings of the ECB’s decision-making bodies”. Lastly, the ECB stated that the request of 20 May 2011 was connected with Decision ECB/2004/3 only in so far as it concerned the Executive Board’s decision of 24 May 2011 as mentioned above, with the rest falling within the scope of the rules applicable to requests for access to documents from ECB staff, and that DG “Human Resources” would provide a separate response based on those rules.9 The second decision was made by the Deputy Director-General of DG “Human Resources” on the basis of the rules applicable to requests for access to documents from ECB staff (“the decision based on the rules applicable to requests for access to documents from ECB staff”). By that decision, the ECB sent the applicant the most recent decisions concerning her annual salary and bonus reviews for 2005 and 2006, along with a note from the Director-General of the DG for Secretariat and Language Services addressed to the Director-General of DG “Human Resources” showing that, at its meetings of 23 November 2010 and 19 April 2011, the Executive Board had given its verdict on the decision not to bring an appeal against the judgments of 28 October 2010 and on the applicant’s annual salary and bonus reviews for 2005 and 2006. However, the ECB refused to send the applicant any preparatory documents relating to the positions taken by the ECB’s decision-making bodies or to internal legal advice, relying on the confidentiality of such documents.10 By letter of 15 July 2011, the applicant submitted a “confirmatory application” on the basis of Article 7(2) of Decision ECB/2004/3, contesting the analysis of her request of 20 May 2011 under the two systems and repeating that request.11 By letter of 5 August 2011, the President of the ECB replied to the confirmatory application, essentially confirming the decision based on Decision ECB/2004/3, but also providing the applicant with several other documents.12 By letter of 12 August 2011 (“the decision of 12 August 2011”), the Director-General of DG “Human Resources” informed the applicant that her confirmatory application of 15 July 2011 had been examined as an administrative appeal against the decision based on the rules applicable to requests from ECB staff. By that letter, he sent the applicant several documents, but stated that some of them had been only partially disclosed, pursuant to the confidentiality rules governing access to opinions of the ECB’s Legal Service.13 On 10 October 2011, the applicant filed a complaint with the President of the ECB against the decision of 12 August 2011, pursuant to paragraph 41 of the Conditions of Employment, in so far as that decision refused to grant her access to all of the documents requested or granted her only partial access to certain documents.14 The ECB provided two responses to that complaint.15 First, the President of the ECB rejected the complaint by decision of 12 December 2011 (“the decision rejecting the complaint”), although he did send the applicant additional information and documents concerning, inter alia, the ECB’s wage policy and the judgments of 28 October 2010. However, some of those documents were only partially disclosed pursuant to the confidentiality rules governing access to internal legal advice, in accordance with the rules applicable to requests for access to documents from ECB staff, and to the personal data of ECB staff, pursuant to Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ 2001 L 8, p. 1).16 Second, by letter of 12 December 2011, the Deputy Director-General of DG “Human Resources” informed the applicant that the part of the complaint in which she stated that the request for access to documents submitted to the Executive Board should have been regarded as referring to all documents sent to one or more members of the Executive Board had been deemed to be a new request pursuant to the rules applicable to requests from ECB staff.…19 At the hearing, the applicant clarified her claim for annulment by stating that in requesting the annulment of “the decision of 21 June 2011” she is referring only to the decision based on the rules applicable to requests for access to documents from ECB staff and not to the decision based on Decision ECB/2004/3.’