# C_2012065EN.01001402.xml

| 3.3.2012 | EN | Official Journal of the European Union | C 65/14 |
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3.3.2012

EN

Official Journal of the European Union

C 65/14

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Appeal brought on 9 December 2011 by Michael Heath against the judgment of the Civil Service Tribunal of 29 September 2011 in Case F-121/10, Heath v ECB

(Case T-645/11 P)

2012/C 65/28

Language of the case: French

Parties

Parties

Appellant: Michael Heath (Southampton, United Kingdom) (represented by: L. Levi and M. Vandenbussche, lawyers)

Appellant:

Other party to the proceedings: European Central Bank (ECB)

Other party to the proceedings:

Form of order sought by the appellant

Form of order sought by the appellant

The appellant claims that the Court should:

| — | set aside the judgment of the Civil Service Tribunal of the European Union of 29 September 2011 in Case F-121/10; |
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set aside the judgment of the Civil Service Tribunal of the European Union of 29 September 2011 in Case F-121/10;

| — | consequently, grant the appellant the relief sought at first instance, namely:






  — | annul the salary slip for January 2010 and the following months, in so far as these apply a pension increase of 0,6 %, in order to apply an increase of 2,1 % calculated in accordance with a lawful GSA [General Salary Adjustment]; |
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consequently, grant the appellant the relief sought at first instance, namely:

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annul the salary slip for January 2010 and the following months, in so far as these apply a pension increase of 0,6 %, in order to apply an increase of 2,1 % calculated in accordance with a lawful GSA [General Salary Adjustment];

| — | to the extent necessary, annul the decisions rejecting the requests for reconsideration and the complaints lodged by the appellant, decisions of 11 May 2010 and 9 September 2010 respectively; |
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to the extent necessary, annul the decisions rejecting the requests for reconsideration and the complaints lodged by the appellant, decisions of 11 May 2010 and 9 September 2010 respectively;

| — | order the ECB to pay the difference between the pension increase of 0,6 % granted unlawfully to the appellant as from January 2010 and that of 2,1 % to which he should have been entitled, namely a salary increase of 1,5 % per month as from January 2010. Those amounts should have interest applied as from their respective due dates until the date of actual payment, calculated on the basis of the rate set by the European Central Bank for main refinancing operations, applicable during the relevant period, plus 2 points; |
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order the ECB to pay the difference between the pension increase of 0,6 % granted unlawfully to the appellant as from January 2010 and that of 2,1 % to which he should have been entitled, namely a salary increase of 1,5 % per month as from January 2010. Those amounts should have interest applied as from their respective due dates until the date of actual payment, calculated on the basis of the rate set by the European Central Bank for main refinancing operations, applicable during the relevant period, plus 2 points;

| — | order the ECB to pay EUR 5 000, to compensate for the appellant’s material damage resulting from the loss in his purchasing power; |
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order the ECB to pay EUR 5 000, to compensate for the appellant’s material damage resulting from the loss in his purchasing power;

| — | order the ECB to pay EUR 5 000, assessed ex aequo et bono to compensate for his non-material damage; |
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order the ECB to pay EUR 5 000, assessed ex aequo et bono to compensate for his non-material damage;

ex aequo et bono

| — | order the ECB to pay the costs; |
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order the ECB to pay the costs;

| — | order the ECB to pay the costs at first instance and on appeal. |
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order the ECB to pay the costs at first instance and on appeal.

Pleas in law and main arguments

Pleas in law and main arguments

In support of the appeal, the appellant relies on five pleas in law.

| 1. | First plea in law, alleging an error of law, infringement of the concept of measure having adverse effects and infringement of the principle of legal certainty. |
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1.

First plea in law, alleging an error of law, infringement of the concept of measure having adverse effects and infringement of the principle of legal certainty.

| 2. | Second and third pleas, alleging infringement of the review of the manifest error of assessment, distortion of the file and failure to state reasons; infringement of Article 17(7) of Annex III to the Conditions of employment and the rules relating to the burden of proof in the review by the Civil Service Tribunal of the lawfulness of the opinion of the actuary and the lawfulness of the content of that opinion. |
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2.

Second and third pleas, alleging infringement of the review of the manifest error of assessment, distortion of the file and failure to state reasons; infringement of Article 17(7) of Annex III to the Conditions of employment and the rules relating to the burden of proof in the review by the Civil Service Tribunal of the lawfulness of the opinion of the actuary and the lawfulness of the content of that opinion.

| 3. | Fourth plea in law, alleging distortion of the file, failure to state reasons and infringement of the rights of the defence, in that the Civil Service Tribunal failed to examine the lawfulness of the intervention beyond November 2009 of the ECB’s actuary in place until 31 October 2009. |
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3.

Fourth plea in law, alleging distortion of the file, failure to state reasons and infringement of the rights of the defence, in that the Civil Service Tribunal failed to examine the lawfulness of the intervention beyond November 2009 of the ECB’s actuary in place until 31 October 2009.

| 4. | Fifth plea in law, alleging infringement of Article 48 of the Conditions of employment, infringement of the right of freedom of association and the fundamental right of collective negotiation as enshrined inter alia in Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and in Article 28 of the Charter of Fundamental Rights of the European Union, as the Civil Service Tribunal considered that ‘the applicant cannot complain that the ECB did not consult the Staff Committee prior to fixing the pension adjustment for 2010’. |
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4.

Fifth plea in law, alleging infringement of Article 48 of the Conditions of employment, infringement of the right of freedom of association and the fundamental right of collective negotiation as enshrined inter alia in Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and in Article 28 of the Charter of Fundamental Rights of the European Union, as the Civil Service Tribunal considered that ‘the applicant cannot complain that the ECB did not consult the Staff Committee prior to fixing the pension adjustment for 2010’.

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