# C_2017014EN.01004201.xml

| 16.1.2017 | EN | Official Journal of the European Union | C 14/42 |
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16.1.2017

EN

Official Journal of the European Union

C 14/42

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Action brought on 3 November 2016 — Paulini v ECB

(Case T-764/16)

(2017/C 014/51)

Language of the case: English

Parties

Applicant: Jörn Paulini (Frankfurt am Main, Germany) (represented by: L. Levi and M. Vandenbussche, lawyers)

Defendant: European Central Bank (ECB)

Form of order sought

The applicant claims that the Court should:

| — | annul the decision of 15 December 2015, as modified on 10 February 2016, which informs the applicant of his Annual Salary and Bonus Review (ASBR) reward for 2015; |
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annul the decision of 15 December 2015, as modified on 10 February 2016, which informs the applicant of his Annual Salary and Bonus Review (ASBR) reward for 2015;

| — | grant the applicant compensation for the material prejudice as described in paragraphs 99 to 103 of the application; |
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grant the applicant compensation for the material prejudice as described in paragraphs 99 to 103 of the application;

| — | grant the applicant compensation for the moral prejudice he suffered, estimated at EUR 10 000; |
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grant the applicant compensation for the moral prejudice he suffered, estimated at EUR 10 000;

| — | order the defendant to pay all the costs. |
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order the defendant to pay all the costs.

Pleas in law and main arguments

In support of the action, the applicant relies on three pleas in law.

| 1. | First plea in law, alleging the illegality of the 2015 ASBR guidelines insofar as they infringe the principle of non-discrimination, Article 51 of the Conditions of Employment and Articles 12 and 21 of the EU Charter. On a subsidiary basis, illegality of the contested decision insofar as it violates the 2015 ASBR guidelines and is tainted by a manifest error of assessment.
  The applicant considers that the 2015 ASBR guidelines are illegal insofar as they put at a disadvantage staff members with limited availability for their business area for reasons that are objectively out of their control, such as sick leave, part time work due to disability or time dispensation for activities in the Staff Committee (or a combination thereof), in comparison to their colleagues available full time for their business area. The contested decision, which was adopted on the basis of illegal ASBR guidelines, is, as a consequence, also illegal.
  On a subsidiary basis, should the 2015 ASBR guidelines be legal, the applicant nevertheless considers that the contested decision violates these guidelines insofar as his periods of absence were used as a discriminating element in his case and, moreover, should have been used as a positive behavioral attitude to influence the ASBR reward positively. All the factors to be assessed in accordance with the 2015 ASBR guidelines should manifestly have led to a higher ASBR reward. |
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1.

First plea in law, alleging the illegality of the 2015 ASBR guidelines insofar as they infringe the principle of non-discrimination, Article 51 of the Conditions of Employment and Articles 12 and 21 of the EU Charter. On a subsidiary basis, illegality of the contested decision insofar as it violates the 2015 ASBR guidelines and is tainted by a manifest error of assessment.

The applicant considers that the 2015 ASBR guidelines are illegal insofar as they put at a disadvantage staff members with limited availability for their business area for reasons that are objectively out of their control, such as sick leave, part time work due to disability or time dispensation for activities in the Staff Committee (or a combination thereof), in comparison to their colleagues available full time for their business area. The contested decision, which was adopted on the basis of illegal ASBR guidelines, is, as a consequence, also illegal.

On a subsidiary basis, should the 2015 ASBR guidelines be legal, the applicant nevertheless considers that the contested decision violates these guidelines insofar as his periods of absence were used as a discriminating element in his case and, moreover, should have been used as a positive behavioral attitude to influence the ASBR reward positively. All the factors to be assessed in accordance with the 2015 ASBR guidelines should manifestly have led to a higher ASBR reward.

| 2. | Second plea in law, alleging, with regard to the application of the formula for time-dispensed staff representation activities, illegality of the contested decision insofar as it did not neutralise absences for sick leave and therefore violates the decision of 18 December 2008, the principle of non-discrimination, Articles 12 and 21 of the EU Charter and of Article 51 of the Conditions of Employment. On a subsidiary basis, should the decision of 18 December 2008 not allow the possibility to neutralise sick leave, plea of illegality of the decision of 18 December 2008 in that respect.
  The applicant considers that the ECB should have neutralised his absence for sick leave, as reflected in his time dispensation for January and February 2015, when calculating his ASBR award for his activities as a member of the Staff Committee using the formula in the decision of 18 December 2008 on the ASBR formula for members of staff in relation to their Staff Committee activities.
  Should the decision of 18 December 2008 not allow such possibility, the applicant herewith challenges, on a subsidiary basis, the legality of this decision in that respect, as staff committee members whose time dispensation had to be redistributed for reasons of absence due to health are disadvantaged compared to their colleagues working full time, despite similar performance or output, and are disadvantaged because of their involvement in the Staff Committee. |
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2.

Second plea in law, alleging, with regard to the application of the formula for time-dispensed staff representation activities, illegality of the contested decision insofar as it did not neutralise absences for sick leave and therefore violates the decision of 18 December 2008, the principle of non-discrimination, Articles 12 and 21 of the EU Charter and of Article 51 of the Conditions of Employment. On a subsidiary basis, should the decision of 18 December 2008 not allow the possibility to neutralise sick leave, plea of illegality of the decision of 18 December 2008 in that respect.

The applicant considers that the ECB should have neutralised his absence for sick leave, as reflected in his time dispensation for January and February 2015, when calculating his ASBR award for his activities as a member of the Staff Committee using the formula in the decision of 18 December 2008 on the ASBR formula for members of staff in relation to their Staff Committee activities.

Should the decision of 18 December 2008 not allow such possibility, the applicant herewith challenges, on a subsidiary basis, the legality of this decision in that respect, as staff committee members whose time dispensation had to be redistributed for reasons of absence due to health are disadvantaged compared to their colleagues working full time, despite similar performance or output, and are disadvantaged because of their involvement in the Staff Committee.

| 3. | Third plea in law alleging, as to the practice of rounding off, violation of the ECB decision of 18 December 2008 insofar as the decision of 18 December 2008 does not allow rounding off for Staff Committee members. On a subsidiary basis, if the 18 December 2008 decision allows rounding off for Staff Committee members, it would be manifestly unjustified and inadequate in that respect.
  In the second plea, the applicant challenged the legality of the decision of 18 December 2008 if that decision had to be interpreted as not allowing for the ECB to neutralise the applicant’s sick leave when applying the formula laid down to calculate ASBR awards. In that plea, he challenged the legality of that decision in that respect only. In addition, the ECB uses a practice which consists of rounding off the result of the formula, in order to translate it into steps, and then translates these rounded steps back into percentages in order to determine the salary increase to be received by the staff member.
  The applicant contests this practice which has no legal basis in the applicable rules and, in particular, in the decision of 18 December 2008. On a subsidiary basis, should the decision of 18 December 2008 be found to allow for the rounding of ASBR awards for Staff Committee members, this decision would be illegal in that respect as it would be manifestly unjustified and inadequate. |
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3.

Third plea in law alleging, as to the practice of rounding off, violation of the ECB decision of 18 December 2008 insofar as the decision of 18 December 2008 does not allow rounding off for Staff Committee members. On a subsidiary basis, if the 18 December 2008 decision allows rounding off for Staff Committee members, it would be manifestly unjustified and inadequate in that respect.

In the second plea, the applicant challenged the legality of the decision of 18 December 2008 if that decision had to be interpreted as not allowing for the ECB to neutralise the applicant’s sick leave when applying the formula laid down to calculate ASBR awards. In that plea, he challenged the legality of that decision in that respect only. In addition, the ECB uses a practice which consists of rounding off the result of the formula, in order to translate it into steps, and then translates these rounded steps back into percentages in order to determine the salary increase to be received by the staff member.

The applicant contests this practice which has no legal basis in the applicable rules and, in particular, in the decision of 18 December 2008. On a subsidiary basis, should the decision of 18 December 2008 be found to allow for the rounding of ASBR awards for Staff Committee members, this decision would be illegal in that respect as it would be manifestly unjustified and inadequate.

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