JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (Full Court)

24 June 2008

Case F-15/05

**Carlos Andres and Others**

**v**

**European Central Bank (ECB)**

(Civil service – ECB staff – Remuneration – Consultation of ECB Staff Committee – Method of calculating the annual adjustment in remuneration – Compliance with a judgment of the Community judicature – Retroactivity)

**Application:**brought under Article 36.2 of the Protocol on the Statute of the European System of Central Banks and of the European Central
Bank, annexed to the EC Treaty, in which Mr Andres and eight other applicants seek, in particular, the annulment of their
salary statements for the month of July 2004, in so far as they contain a salary increase fixed in accordance with an allegedly
unlawful method of annual salary adjustment and that increase does not have retroactive effect with regard to the years 2001,
2002 and 2003, and, secondly, the award of damages.

**Held:**The action is dismissed. The parties are to bear their own costs.

**Summary**

1.      *Officials – Staff of the European Central Bank – Representation – Staff Committee – Consultation*

*(Decision ECB/2004/3, Art. 4(4); Conditions of Employment for Staff of the European Central Bank, Arts 45 and 46)*

2.      *Officials – Staff of the European Central Bank – Representation – Staff Committee – Consultation*

*(Conditions of Employment for Staff of the European Central Bank, Arts 45 and 46)*

3.      *Officials – Actions – Judgment annulling a measure – Effects – Obligation to comply*

*(Art. 233 EC)*

1.      It follows from Article 46 of the Conditions of Employment for Staff of the European Central Bank that the Staff Committee
must be consulted prior to any change in those Conditions of Employment, the Staff Rules and related matters, including those
connected with remuneration. Taking that article in particular as its basis, the Memorandum of Understanding on Relations
between the Executive Board and the Staff Committee of the ECB gives concrete expression to the right of the Staff Committee
to be consulted and lays down, in particular, the procedure to be followed, beginning with the obligation for the ECB to provide
complete information. The right of workers to information and consultation is a general principle of employment law, in the
light of which the relevant provisions of the Memorandum of Understanding must be interpreted.

The scope of the ECB’s obligation to provide information for the Staff Committee must be assessed in the light of the nature
of the source data. Thus, in the case of data supplied by third parties for the purposes of the annual adjustment of the salaries
of staff of the ECB, concerning the salary increase percentages and the numbers of employees of the national central banks,
the Community institutions and certain international organisations, the ECB may comply with the authorship rule laid down
in Article 4(4) of Decision ECB/2004/3 on public access to European Central Bank documents and refuse to disclose the data
to all the members of the Staff Committee. The ECB satisfies its obligation to provide information where it gives access to
those data to representatives duly appointed by the Staff Committee following a proposal to that effect from that Committee.

(see paras 58-60, 64-65, 67-68)

See:

T-192/99 *Dunnett and Others* v *EIB* [2001] ECR II‐813, para. 105

2.      Under the procedure for consulting the Staff Committee on the annual adjustment of the salaries of ECB staff, the fact that
‘unofficial’ meetings were held with representatives duly appointed by the Staff Committee for the purposes of the consultation
and not with the full Staff Committee does not constitute an irregularity where the Staff Committee was kept informed of the
results of those meetings and relations between the Staff Committee and the ECB were based on a high degree of mutual trust
and on open communication, a situation such as to justify the informality of certain meetings .

(see paras 77-81)

3.      When compliance with a judgment annulling a measure poses special difficulties, the institution concerned may take any decision
which is such as to compensate fairly for the disadvantage resulting for the persons concerned from the annulled decision.
In that context, the administration may establish a dialogue with them with a view to seeking to reach an agreement offering
them fair compensation for the illegality of which they were victims.

In the case of compliance with a judgment declaring unlawful the procedure for adjusting the salaries of the ECB staff for
a particular year because of the failure to consult the Staff Committee in a regular and appropriate manner, the adoption
of a compromise consisting, first, of extending the consultation to subsequent years when it was also not carried out, and,
second, of extending the salary increases resulting from the consultation to all the staff and not only to the applicants,
constitutes a fair and reasonable solution, even if special difficulties prevent the increases decided from being given retroactive
effect.

(see paras 121, 132-136)

See:

T-91/95 *De Nil and Impens* v *Council* [1996] ECR-SC I‐A‐327 and II‐959, para. 34; T-81/96 *Apostolidis and Others* v *Commission* [1997] ECR-SC I‐A‐207 and II‐607, para. 42; T-177/97 *Simon* v *Commission* [2000] ECR-SC I‐A‐75 and II‐319, para. 23


JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL
(Full Court)

24 June 2008 ?([1](#Footnote1))

(Civil service – ECB staff – Remuneration – Consultation of ECB Staff Committee – Method of calculating the annual adjustment in remuneration – Compliance with a judgment of the Community judicature – Retroactivity)

In Case F‐15/05,

ACTION under Article 36.2 of the Protocol on the Statute of the European System of Central Banks and of the European Central
Bank, annexed to the EC Treaty,

**Carlos Andres,** a member of staff of the European Central Bank, residing in Frankfurt am Main (Germany), and the eight other applicants whose
names are listed in the annex, represented by G. Vandersanden and L. Levi, lawyers,

applicants,

v

**European Central Bank (ECB),** represented by C. Zilioli and K. Sugar, acting as Agents, and by B. Wägenbaur, lawyer,

defendant,

THE TRIBUNAL (Full Court),

composed of P. Mahoney, President, H. Kreppel (Rapporteur) and S. Van Raepenbusch, Presidents of Chambers, I. Boruta, H. Kanninen,
H. Tagaras and S. Gervasoni, Judges,

Registrar: W. Hakenberg,

having regard to the written procedure and further to the hearing on 22 May 2007,

gives the following

**Judgment**

1        By application received by fax at the Registry of the Court of First Instance of the European Communities on 21 March 2005
(the original being lodged on 23 March 2005), the applicants brought the present action seeking, first, the annulment of their
salary statements for the month of July 2004, in so far as they contain a salary increase fixed in accordance with an allegedly
unlawful method of annual salary adjustment and that increase does not have retroactive effect with regard to the years 2001,
2002 and 2003, and, secondly, the award of damages.

**Legal context**

2        Article 36 of the Protocol on the Statute of the European System of Central Banks and of the European Central Bank (ECB),
annexed to the EC Treaty (‘the ESCB Statute’), contains the following provisions:

‘Staff

36.1. The Governing Council, on a proposal from the Executive Board, shall lay down the conditions of employment of the staff
of the ECB.

36.2. The Court of Justice [of the European Communities] shall have jurisdiction in any dispute between the ECB and its servants
within the limits and under the conditions laid down in the conditions of employment.’

3        On 9 June 1998, pursuant to Article 36.1 of the ESCB Statute, the Governing Council of the ECB adopted the Conditions of Employment
for Staff of the ECB (Decision 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, OJ 1999 L 125, p. 32, and on 5 July 2001, OJ 2001 L 201, p. 25; ‘the Conditions of Employment’).

4        Article 42 of the Conditions of Employment, which implements Article 36.2 of the ESCB Statute, specifies:

‘After all available internal procedures have been exhausted, the Court of Justice ... shall have jurisdiction in any dispute
between the ECB and a member or a former member of its staff to whom these Conditions of Employment apply.

Such jurisdiction shall be restricted to the legality of the measure or decision, unless the dispute is of a financial nature,
in which case the Court of Justice shall have unlimited jurisdiction.’

5        With regard to employment relations, Article 9 of the Conditions of Employment provides inter alia:

‘(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 [ECB] Staff Rules adopted by the Executive Board shall further specify the application
of these Conditions of Employment.

...

(c) No specific national law governs these Conditions of Employment. The ECB shall apply (i) the general principles of law
common to the Member States, (ii) the general principles of European Community (EC) law, and (iii) the rules contained in
the EC regulations and directives concerning social policy which are addressed to Member States. Whenever necessary, these
legal instruments will be implemented by the ECB. EC recommendations in the area of social policy will be given due consideration.
In interpreting the rights and obligations under the present Conditions of Employment, due regard shall be shown for the authoritative
principles of the regulations, rules and case-law which apply to the staff of the EC institutions.’

6        As regards salary adjustments, Article 13 of the Conditions of Employment provides:

‘The Governing Council, on a proposal from the Executive Board, shall adopt general salary adjustments, which shall take effect
on 1 July of each year.’

7        Concerning staff representation, Articles 45 and 46 of the Conditions of Employment, contained in Part 9 headed ‘Staff Representation’,
read as follows:

‘45. A Staff Committee whose members are elected by secret ballot shall represent the general interests of all members of
staff in relation to contracts of employment; staff regulations and remuneration; employment, working, health and safety conditions
at the ECB; social security cover; and pension schemes.

46. The Staff Committee shall be consulted prior to changes in these Conditions of Employment, the Staff Rules and related
matters as defined under [Article] 45 above.’

8        The provisions of Article 46 of the Conditions of Employment are rendered more specific by the European Central Bank Staff
Rules, which lay down inter alia the details of the consultation procedure between the ECB and the Staff Committee (Article
9.2).

9        On 17 June 2003, a Memorandum of Understanding on Relations between the Executive Board and the Staff Committee of the ECB
(‘the Memorandum of Understanding’) was signed, defining more specifically the context and the procedures to be followed.

10      Its preamble provides that ‘efforts shall be made to provide all relevant information and to initiate a dialogue at the earliest
possible time in so far as there are no overriding reasons for not doing so’.

11      Article 6 of the Memorandum of Understanding sets forth the requirements for a consultation request:

‘When starting a consultation procedure, the President or his/her representative shall submit to the Staff Committee a written
consultation request together with complete information, i.e. information, which allows the Staff Committee to acquaint with
[*sic*] and to examine the subject-matter of the consultation, in so far as there are no overriding reasons for not doing so. ...’

12      Article 15 of the Memorandum of Understanding provides for a simplified consultation procedure:

‘For reasons, which must be justified by one or the other party to the dialogue, a procedure may be agreed upon to reduce
the number of exchanges of views on a specific issue. In such cases an ad hoc schedule will be defined and agreed upon by
the parties.’

13      Pursuant to Article 13 of the Conditions of Employment, the Executive Board of the ECB developed a method for implementing
the general salary adjustments (GSA) (‘the method of calculation’). In principle, the method is based on a specific assessment
of the salary adjustments in the organisations which are the ECB’s principal sources of staff recruitment, such as the national
central banks (‘the comparator organisations’), in order to ensure that the salaries of the staff of the ECB remain in line
with their level of remuneration. With regard to the years 1999 to 2001, the method of calculation was adopted by the Governing
Council of the ECB on 20 June 1999 (‘GSA 1999-2001’). That version was subsequently amended by the Governing Council for the
years 2002 to 2004 (‘GSA 2002-2004’).

14      According to GSA 1999-2001, the salary adjustment for the employees of each comparator organisation (as a percentage) is related
to the number of its employees, in accordance with the following principles:

‘–      [t]he annual general salary adjustment [will] be based on the average development of nominal salaries in the fifteen [national
central banks] plus the [Bank for International Settlements (BIS)], as the “central bankˮ of the central banks;

–        [t]he annual adjustments in the comparator organisations for the current calendar year [will] be taken [into account];

–        [t]he nominal salary developments will be weighted[; t]he weighting will be based on the number of employees in each of the
comparator institutions;

–        ...’

15      Consequently, no differentiation was made by GSA 1999-2001 between the different comparator organisations and no possibility
of correction was provided for.

16      By contrast, GSA 2002-2004, while following the same principles, take into account two groupings of comparator organisations,
each grouping contributing 50% to the calculation of the annual adjustment:

‘–      [t]he annual general salary adjustment will be based on the average development of nominal salaries in the following institutions:

–        1. [t]he fifteen [national central banks] and the BIS;

–        2. [t]he European Community institutions and bodies (i.e. the ... Commission [of the European Communities] and its agencies,
the Council of the European Union, the [European] Parliament, the Court of Justice, the Court of Auditors [of the European
Communities], the [European] Economic and Social Committee, the Committee of the Regions [of the European Union];

[t]he “Coordinated Organisations” (i.e. [the North Atlantic Treaty Organisation (NATO)], [the Organisation for Economic Cooperation
and Development (OECD)], European Space Agency, European Centre for Medium-Range Weather Forecast[s], Council of Europe, Western
European Union);

[t]he European Investment Bank.

–        [t]he nominal salary developments will be weighted according to the number of employees in each of the comparator institutions;

–        each of the comparator groupings (i.e. 1 and 2 above) will contribute 50% each to the calculation’.

17      In addition, GSA 2002-2004 provide for a system of correction of the adjustments in the light of data which become available
subsequently:

‘The annual adjustments in the comparator organisations for the current calendar year (where available) will be taken [into
account]. Where adjustments are not available for the current year, the previous year’s data will be used and, subject to
the data being available, the difference with the actual data will be corrected in the following year.’

18      Decision ECB/2004/3 of 4 March 2004 on public access to European Central Bank documents (OJ 2004 L 80, p. 42), Article 2(1)
of which provides that any citizen of the Union ‘has a right of access to ECB documents, subject to the conditions and limits
defined in this Decision’, provides, in Article 4(1), that the ECB is to refuse access to a document where disclosure would
undermine the protection of the public interest, the privacy and the integrity of the individual and the confidentiality of
information that is protected as such under Community law. Concerning the application of such an exception, Article 4(4) of
that decision states:

‘As regards third-party documents, the ECB shall consult the third party concerned with a view to assessing whether an exception
in this Article is applicable, unless it is clear that the document shall or shall not be disclosed.’

**Facts**

19      The applicants concluded contracts of employment with the ECB which provide inter alia that the Conditions of Employment and
amendments thereto are an integral part of the contract.

20      By judgment of the Court of First Instance of 20 November 2003 in Case T‐63/02 *Cerafogli and Poloni* v *ECB* [2003] ECR II‐4929, the decisions contained in the salary statements addressed to the applicants, members of staff of the
ECB, on 13 July 2001, for the month of July 2001, were annulled, in so far as the ECB had not consulted the Staff Committee
prior to the salary adjustment for 2001.

21      On 16 December 2003, the ECB addressed to all members of staff a memorandum announcing that, following the judgment of the
Court of First Instance, it would undertake a consultation with the Staff Committee regarding the implementation of the method
of calculation in the years 2001, 2002 and 2003. In particular, that memorandum stated:

‘Administration will now undertake a consultation of the Staff Committee as regards the implementation of the methodology
in the years 2001, 2002 and 2003. However, in this respect, there is no reason from the Court [of First Instance] judgment
to submit in the consultation that the calculations for any one of these years should be changed.’

22      By memorandum of 9 January 2004, the ECB opened the consultation procedure by forwarding to the Staff Committee some lists
of data provided by the comparator organisations for 2001, 2002 and 2003.

23      The Staff Committee replied on 25 March 2004, raising various questions concerning the data forwarded by the ECB and requesting
the retroactive application of the result of the final calculation of the salary adjustment for employees of the ECB for the
years 2001, 2002 and 2003, on the basis inter alia of the differences found by the Staff Committee between the data provided
on 9 January 2004 by the ECB and the data of the same kind obtained by the Staff Committee from the staff committees of the
comparator organisations. The Staff Committee wanted an upward salary adjustment taking account of all those factors.

24      A series of ‘technical’ and ‘ad hoc’ meetings between the Staff Committee and the ECB representatives was then held. In particular,
a technical meeting took place on 30 March 2004, at which the Staff Committee representatives (including the applicant Ms
Cerafogli) produced copies of all the documents which the Staff Committee had received from the staff committees of the comparator
organisations for the previous years. The salary adjustment for the years 2001 to 2003 was also the subject of a technical
meeting held on 11 May 2004. An ECB representative, Mr Kelly, gave figures relating to a number of national central banks
and explained that it would be necessary to discuss their distribution over each of the years 2001, 2002 and 2003, making
it clear that, if the figures showed a difference, an adjustment would be likely. In reply to the question from the Staff
Committee representatives (including the applicant Mr Seigneur) regarding a retroactive adjustment, the ECB representative
expressed a preference for the adjustment to take effect in 2004. Further ad hoc meetings concerning the salary adjustment
were held on 1 June 2004 in the presence of the ECB representative, Mr Kelly, the Staff Committee spokesperson, Mr van de
Velde, and of one of the deputy spokespersons of that committee, Mr van der Ark, and on 9 June 2004 in the presence of two
ECB representatives, Mr van Baak and Mr Kelly, and the two Staff Committee members present at the meeting of 1 June 2004.
The nature of, participation in and content of the meetings of 1 and 9 June 2004 and of other meetings remain, in several
respects, controversial.

25      By memorandum of 3 June 2004, the Staff Committee voiced its expectation that the likely outcome of the salary adjustment,
following the consultation procedure for the years 2001 to 2003, would take effect at the same time as the adjustment to be
made in respect of 2004 (that is, from 1 July 2004, as provided for by Article 13 of the Conditions of Employment).

26      So far as concerns a meeting held on 14 June 2004, different accounts of its preparation and course are also given by the
parties. The applicants maintain that the Staff Committee received certain important statistical data only during the meeting,
whereas at no time during the consultation procedure started by the memorandum of 9 January 2004 did the members of the Staff
Committee have access to all the documents by which the comparator organisations communicated the salary increase percentages
and the numbers of employees (‘the source data’). The ECB, on the other hand, claims to have forwarded the statistical data
in question on Friday 11 June 2004 and to have shown the source data to the Staff Committee spokesperson, Mr van de Velde,
and one of his deputies, Mr van der Ark, on a date which it was not able to specify. The assertion that it was the Staff Committee
which proposed to the ECB that its spokesperson and one of its deputy spokespersons should be given such access to the source
data is confirmed by an e‐mail of 1 June 2004 from the deputy spokesperson, Mr van der Ark. In addition, the fact that there
was such access is confirmed by a written statement dated 13 June 2005 and signed, inter alios, by the two Staff Committee
representatives concerned.

27      The Staff Committee, represented by its spokesperson and one of its deputy spokespersons, sent to the Director-General of
the Directorate-General (DG) for Administration of the ECB a letter dated 14 June 2004 in which it wrote that:

‘The Staff Committee recently received the recalculated figures from the Directorate [for] Human Resources on the GSA 2001-2003.

We had hoped to conclude the consultation on GSA 2001-2003 in time for the GSA calculation for 2004. Having provided our findings
on 25 March we have only recently received a table with the recalculated figures from [the] Directorate [for] Human Resources.
We have met with [the] Directorate [for] Human Resources staff concerned to understand and clarify these figures. A small
number of differences, which cannot yet be explained, remain to be agreed. Specifically Belgium (2001), [Deutsche] Bundesbank
(2001 and 2002) and the ... Commission (2002). New data has become available for Ireland and the EIB since our letter of 25
March 2004. Further information regarding the Banca d’Italia, as provided by our counterparts, contains elements not related
to the GSA.

It is not possible to resolve the differences in advance of the proposed timetable for the Executive Board to confirm the
award for 2004. However, [the] Directorate [for] Human Resources has already confirmed that the revised data provided to them
show a cumulative effect of 0.9% for 2001-2003, of which 0.6% is already accounted for in the calculation of 2004.

Since the remaining difference, if confirmed, will make a small increase in the end result, we suggest that the already agreed
0.3% difference (0.9% – 0.6%) is added to the result of the 2004 GSA, and that any remaining difference is made up for in
2005 when the final figures are agreed.’

28      On 15 June 2004, that is, the following day, the Executive Board of the ECB approved the proposal of the President of the
ECB for a 3.5% increase made up of 3.2% in respect of 2004 and a one-off supplementary adjustment of 0.3% in respect of the
period from 2001 to 2003, and decided to submit that proposal to the Governing Council for adoption. The rate of 3.2% includes
0.6% by virtue of the data which were lacking in 2003 but became available in 2004.

29      On that same date, 15 June 2004, the staff of the ECB elected a new Staff Committee.

30      In a letter of 25 June 2004, addressed to the Vice-President of the ECB, the new Staff Committee expressed the view that the
consultation procedure relating to the years 2001 to 2003 had not been concluded by the letter of 14 June 2004. It therefore
requested a reply to the previous Staff Committee’s letter of 25 March 2004, so as to ensure that a consultation procedure
complying with the Memorandum of Understanding, including a second phase of consultation, was followed.

31      At its meeting on 1 July 2004, the Governing Council adopted the Executive Board’s proposal of 15 June 2004.

32      By memorandum of 1 July 2004, the Director of the Directorate for Human Resources of the Administration DG informed all members
of staff that a decision to increase salaries by 3.5% with effect from 1 July 2004 had been taken by the Governing Council.

33      By his letter of 7 July 2004, the Director of the Directorate for Human Resources of the Administration DG replied as follows
to the new Staff Committee on the subject of the salary adjustment for the years 2001 to 2003:

–        he referred to the letter of 9 January 2004 (opening the consultation procedure) and to those from the Staff Committee of
14 and 25 June 2004;

–        he noted that ‘[t]he information ... provided ... ha[d] been checked, and [bore] out that an underpayment amounting to 0.3% ha[d]
arisen over the period due to flawed data being presented by some comparators[; a]s a consequence, the Governing Council ha[d]
agreed to apply a one-off adjustment of 0.3% to the 2004 GSA outcome, increasing the final result to 3.5% with effect from
1 July 2004’;

–        he confirmed that the consultation procedure would continue (‘regards this exchange as ongoing’) but with effect from the
next adjustment cycle (‘[a]lthough it is accepted that any remaining differences will be made up for in the next GSA, I suggest
a deadline for your further comments of 20 working days from receipt of this letter, in order to maintain the momentum on
this issue’).

34      The salary statements which included the 0.3% increase for the years 2001 to 2003 as well as that of 3.2% for 2004 were sent
to the applicants in mid-July 2004.

35      On 4 August 2004, the Staff Committee replied to the letter of 7 July 2004 from the ECB. Basing its position in part on data
other than those communicated by the previous Staff Committee, the new Staff Committee stated that it was unable to understand
how the figure of 0.3% had been obtained. The discrepancies thus found by the new Staff Committee were, in its view, probably
due to ‘the incorrect interpretation of data ... by the [previous] Staff Committee and the Administration’.

36      In reply to the Staff Committee’s memorandum of 4 August 2004, the Director of the Directorate for Human Resources of the
Administration DG provided, by memorandum of 23 September 2004, information and clarifications on the three points which,
according to the Staff Committee’s letter of 14 June 2004, remained to be clarified so far as concerned the salary adjustments
for the years 2001 to 2003, in relation to the data from the Banque nationale de Belgique, the Deutsche Bundesbank and the
Commission. He regarded the consultation procedure as having ended.

37      By memorandum of 6 October 2004, addressed to the Director of the Directorate for Human Resources of the Administration DG,
the Staff Committee requested inter alia that he withdraw his memorandum of 23 September 2004 and send a new letter which
would answer the questions raised in its letters of 25 March, 25 June and 4 August 2004, which had not received adequate replies.
Otherwise, the consultation on the general salary adjustment exercise 2001 to 2003 would be considered by the Staff Committee
not to have been carried out.

38      The ECB replied on 23 February 2005 to the Staff Committee’s memorandum of 6 October 2004. By memorandum of 28 February 2005,
the Staff Committee responded to the ECB’s letter 23 February 2005. It was primarily by those two letters and the respective
proposals which they contained that the ECB and the Staff Committee attempted to put an end to their dispute by means of an
amicable settlement. The principle underlying the proposed amicable settlement was that the failure to take into account the
differences pointed out by the Staff Committee in relation to the calculation of the salary adjustment for the years 2001
to 2003 should be made up for by granting additional days of leave. Not having reached an agreement with the Staff Committee,
the ECB reiterated, in its memorandum of 7 March 2005, the view that the consultation had ended.

39      A number of members of staff of the ECB, including the applicants, had submitted, between 10 September and 14 September 2004,
requests for administrative review of their salary statements for the month of July 2004. In those letters, which were based
on a common model, the applicants requested, inter alia:

–        that their salary statements for the month of July 2004 be revised so as to include, retroactively, in the amount paid in
July 2004, the result of the revision of the salary adjustment for the years 2001 to 2003;

–        that their salary statements for July 2004 be revised so as to include the total amount of the balance, as calculated by the
Staff Committee, resulting from the revision of the implementation of the salary adjustment exercise for the years 2001, 2002
and 2003 (that is, 2.67%), the payments to take place on a retroactive basis;

–        should the ECB reject the request made in that regard by the Staff Committee, communication of the source data communicated
to the ECB by the comparator organisations, so as to prove that the calculations made by the ECB were consistent with the
source data provided.

40      On 9 December 2004, the ECB replied to the requests for review. Its replies were also based on a common model, with the exception
of that given to Mr Poloni, which is different in view of the alleged late submission of his request for review.

41      The applicants submitted grievances under the internal grievance procedure by letters dated 9, 10 and 13 December 2004.

42      The internal grievances were rejected by letters of 6 January 2005 served on the applicants on 10 January 2005.

**Procedure and forms of order sought by the parties**

43      The present action was lodged at the Registry of the Court of First Instance under number T‐131/05.

44      By order of 15 December 2005, the Court of First Instance, pursuant to Article 3(3) of Council Decision 2004/752/EC, Euratom
of 2 November 2004 establishing the European Union Civil Service Tribunal (OJ 2004 L 333, p. 7), referred the present case
to the Tribunal. The action was lodged at the Tribunal Registry under number F‐15/05.

45      After consulting the parties, the Tribunal decided to refer the case to the full court.

46      The applicants claim that the Tribunal should:

–        declare the present action admissible and well founded; and, consequently,

–        annul their salary slips for the month of July 2004;

–        in so far as necessary, annul the decisions, dated 9 December 2004 and 6 January 2005 respectively, rejecting the requests
for administrative review and internal grievances submitted by them;

–        order the ECB to produce its ‘administrative file’;

–        order the ECB to award damages to compensate for the damage caused to them, consisting, first, of a payment of a sum of EUR
5 000 per applicant on account of a loss of purchasing power since 1 July 2001, and, secondly, of arrears of remuneration
corresponding to an increase in their salaries of 1.86% for the period from 1 July 2001 to 30 June 2002, 0.92% for the period
from 1 July 2002 to 30 June 2003 and 2.09% for the period from 1 July 2003 to 30 June 2004, together with interest from their
respective due dates until the date of actual payment, calculated at a rate two points above the rate set by the ECB for its
main refinancing operations as applicable during the period in question;

–        order the ECB to pay the entirety of the costs.

47      The ECB contends that the Tribunal should:

–        declare the action inadmissible so far as concerns Mr Poloni;

–        dismiss the action as unfounded;

–        make an appropriate order as to costs.

48      By way of measures of organisation of procedure, in accordance with Article 64 of the Rules of Procedure of the Court of First
Instance, applicable *mutatis mutandis* to the Tribunal pursuant to Article 3(4) of Decision 2004/752 until the entry into force of its Rules of Procedure, the Tribunal
put questions in writing to both parties and asked for documents to be produced, including the file of source data. The parties
complied with those measures within the time-limits set.

49      As regards the applicants’ request for the production by the ECB of the ‘administrative file’, it must be observed that they
have had access to the file of source data. There is therefore no longer any need to rule on their request inasmuch as they
have not specified which other documents it would have been useful to consult.

50      An attempt to reach an amicable settlement on the initiative of the Tribunal has been unsuccessful.

**Law**

1.     *The claims for annulment*

51      Even though the claims for annulment are also formally directed against the decisions rejecting the requests for administrative
review and against the decisions taken on 6 January 2005 rejecting the applicants’ internal grievances submitted on 9, 10
and 13 December 2004, they must be regarded, by virtue of settled case-law applicable *mutatis mutandis* to the ECB, as directed against the decisions by which the ECB fixed the applicants’ remuneration, namely the decisions reflected
in the salary statements for the month of July 2004 (see inter alia Case 293/87 *Vainker* v *Parliament* [1989] ECR 23, paragraph 8).

52      In support of their action, the applicants raise three pleas in law alleging, in essence, breach of the obligation to consult
the Staff Committee on the changes made to the Staff Rules in so far as they concern the salary adjustment for the years 2001
to 2003, non-compliance with the method of calculation and failure to apply retroactively the corrections to be made to the
general salary adjustment.

*The first plea in law, alleging breach of the obligation to consult the Staff Committee*

 Arguments of the parties

53      By their first plea in law, the applicants complain that the ECB, in essence, infringed the procedure for consultation of
the Staff Committee in connection with the salary adjustment for the years 2001 to 2003. This plea in law comprises four parts:
alleged infringement of Articles 45 and 46 of the Conditions of Employment, of Article 9 of the Memorandum of Understanding,
of the principle of sound administration and of the obligation to act in good faith.

54      In this regard, the applicants claim that the source data, which had to be communicated to the ECB by the comparator organisations
and on the basis of which it made its calculations in the context of implementing the methods of calculation for the years
2001, 2002 and 2003, were never communicated to the Staff Committee. In addition, they submit that the ECB did not comply
with its obligation to consult the Staff Committee, referred to in Articles 45 and 46 of the Conditions of Employment and
in the Memorandum of Understanding, inasmuch as it did not provide that committee with information in good time, it did not
hold the technical meetings in the proper manner and arranged ad hoc meetings in an irregular manner, it replied only inadequately
to the Staff Committee’s questions and the consultation procedure had not been concluded when the salary statements for the
month of July 2004 were sent out.

55      Relying, inter alia, on the judgment of the Court of First Instance in Case T‐186/01 *Robert* v *Parliament* [2003] ECR‐SC I‐A‐131 and II‐631, paragraph 64, the ECB disputes the admissibility of the first plea in law. It contends that
the applicants did not raise this plea at the pre-litigation stage

56      As to the merits, as well as pointing to ‘the strictest confidentiality’ of the source data communicated to it, the ECB states
that the Directorate for Human Resources of the Administration DG nevertheless gave the members of the Staff Committee, ‘through
the spokesperson ... and the deputy spokesperson’, the opportunity to satisfy themselves as to the relevance of the tables provided
by the ECB by allowing them to acquaint themselves with those documents at its premises, thus ensuring the transparency required
in the context of the consultation without disclosing those documents in writing. This fact is confirmed by the statement
from the five members of the previous Staff Committee.

 Findings of the Tribunal

57      The four parts of the first plea in law must be examined together in so far as they are connected and the applicants have
put forward a single series of arguments in support of them.

58      Under Article 46 of the Conditions of Employment, the Staff Committee must be consulted prior to ‘changes in [those] Conditions
of Employment, the Staff Rules and related matters as defined under [Article] 45 [of those same Conditions of Employment]’.
Such matters include those connected with remuneration.

59      Taking as its basis in particular those provisions, the Memorandum of Understanding gives concrete expression to the right
of the Staff Committee to be consulted and lays down, in particular, the procedure to be followed, beginning with the obligation
for the ECB to provide complete information (see paragraphs 10 and 11 of this judgment).

60      It should be recalled that the right of workers to information and consultation is a ‘general principle of employment law’
(Case T‐192/99 *Dunnett and Others* v *EIB* [2001] ECR II‐813, paragraph 105), in the light of which the relevant provisions of the Memorandum of Understanding must
be interpreted.

61      In that regard, the applicants raise several complaints in order to demonstrate that the consultation procedure called for
by the relevant provisions of the Conditions of Employment and the Memorandum of Understanding was not properly followed by
the ECB.

–       The complaint alleging incompleteness of the information provided by the ECB

62      The applicants complain that the ECB did not provide ‘complete information’, inasmuch as access to the source data was not
granted to all the members of the Staff Committee on account of the asserted confidentiality of those data.

63      In that regard, it must be reiterated that, pursuant to Article 6 of the Memorandum of Understanding, the request for consultation
must be submitted ‘together with complete information’, allowing the Staff Committee to ‘acquaint with [*sic*] and to examine the subject-matter of the consultation, in so far as there are no overriding reasons for not doing so’.

64      The scope of the obligation to provide information must, in this case, be assessed in the light of the nature of the source
data which, although held by the ECB, do not originate from it. However, it is apparent from the file that, at the material
time, the comparator organisations made the source data available, in general, only on the assurance that they would not be
widely disclosed, but used only for the purposes of the annual adjustment of the salaries of staff of the ECB.

65      In those circumstances, the ECB cannot be criticised for complying with the authorship rule laid down in Article 4(4) of Decision
ECB/2004/3 by not disclosing the source data to all the members of the Staff Committee.

66      The argument that, since 2006, the ECB has made the source data available to all the members of the Staff Committee at the
same time as the calculation of the salary adjustment figures cannot invalidate that conclusion. It was only in respect of
the years subsequent to the facts in issue, as a consequence of an ECB initiative to that effect, that the comparator organisations
agreed to a wider disclosure of their data.

67      On the other hand, the file shows, first, that the spokesperson for the Staff Committee and one of its deputy spokespersons
did indeed have access to the source data. It was the Staff Committee itself which proposed that those two spokespersons should
receive such access. That fact is borne out by an e-mail of 1 June 2004 from the deputy spokesperson, Mr van der Ark.

68      In addition, the spokespersons were elected and duly appointed by the Staff Committee itself, and not ‘chosen’ by the ECB
administration as preferred interlocutors. The results of the election within the Staff Committee of its spokesperson, Mr
van de Velde, and of his two deputies, Mr Van Damme and Mr van der Ark, had been communicated to the administration by memorandum
of 17 February 2003. Accordingly, the spokespersons must be regarded as having been the representatives duly appointed by
the Staff Committee itself for the purposes of the consultation on the salary adjustment for the years 2001, 2002 and 2003.

69      It must therefore be held that, through its representatives, the Staff Committee of the ECB, as a body, was acquainted with
the source data (see, to that effect, the order in Case T‐27/00 *Staff Committee of the ECB and Others* v *ECB* [2000] ECR‐SC I‐A‐217 and II‐987, paragraph 25).

70      Moreover, the information provided to the Staff Committee was essentially adequate, in so far as the committee had the opportunity
to check, for each comparator organisation, all the relevant data and to compare them with the data in its possession, which
had been collected and sent in by the staff representatives of the comparator organisations.

71      Furthermore, the Staff Committee did not express, in the course of the consultation procedure, any criticism or reservation
regarding the communication of the source data. In particular, the memorandum of 14 June 2004 does not contain any reference
to a lack of access to the source data.

72      It follows that the complaint alleging incompleteness of the information provided by the ECB must be rejected.

–       The complaint alleging failure to provide information in good time

73      The applicants criticise the ECB for not having provided the necessary information in good time. In particular, the information
given on Friday 11 June and Monday 14 June 2004 was given late.

74      In that regard, it must be pointed out that the preamble to the Memorandum of Understanding requires that all relevant information
be provided at the earliest possible time. Admittedly, the consolidated tables shown to the Staff Committee on Friday 11 June
and Monday 14 June 2004 by a representative of the ECB were not made available in such a manner as to allow a detailed analysis
of all the statistical data concerned. In order for a Staff Committee decision to be taken on 14 June 2004, which was the
latest working day (before the meeting of the Executive Board of the ECB on 15 June 2004) that would allow any ‘special’ adjustment
of salaries in respect of the years 2001 to 2003 to take effect from 1 July 2004, at the same time as the normal adjustment
in respect of 2004, there was not sufficient time left in which to carry out the necessary verification of certain data on
which differences remained and then to enter into dialogue with the ECB.

75      However, it is important to note, first, that the Staff Committee had itself expressed in writing, on 3 June 2004, the expectation
that any ‘special’ salary adjustment in respect of the years 2001 to 2003 would take effect in the 2004 normal adjustment
exercise and had therefore accepted such a time constraint in full knowledge of the facts, since the ECB was required by Article
13 of the Conditions of Employment to make the salary adjustment for 2004 with effect from 1 July, and, secondly, that a large
part of the relevant data had been discussed between the ECB and the Staff Committee between January and June 2004 as and
when they were available, at scheduled and ad hoc technical meetings. The summary table presented on 11 June 2004 by the ECB
was not a first presentation but the result of ongoing work carried out jointly by the ECB representatives, in particular
Mr Kelly, and the designated representatives of the Staff Committee. After receiving that summary table, the Staff Committee,
as stated in its memorandum of 14 June 2004, met with the Directorate for Human Resources staff concerned in an endeavour
to understand and clarify the recalculated figures and concluded that disagreements remained only in relation to a small number
of differences (three) which were likely to have little effect on the end result. For that reason, it was the Staff Committee
that ‘suggested’ to the ECB in that memorandum that ‘the already agreed 0.3% difference ... is added to the result for the 2004
GSA, and that any remaining difference is made up for in 2005 when the final figures are agreed’.

76      It follows that the complaint alleging failure to provide information in good time must be rejected.

–       The complaint alleging that meetings were held in an irregular manner

77      The applicants criticise the fact that, outside the official procedure laid down by the Memorandum of Understanding, ‘unofficial’
consultation meetings were held with the Staff Committee’s spokespersons and not with the full Staff Committee, and without
the latter’s knowledge.

78      However, the spokespersons were the representatives duly appointed by the Staff Committee itself for the purposes of the consultation
(see paragraph 68 of this judgment).

79      Technical meetings and a simplified consultation procedure are in fact provided for in the Memorandum of Understanding. As
regards the ad hoc meetings, the Memorandum of Understanding by no means excludes the holding of such meetings, since Article
15 expressly provides for a simplified consultation procedure. That article allows the parties to reduce the number of exchanges
of views and also to derogate from the time-limits laid down by the memorandum, agreeing on shorter periods where appropriate;
the drawing-up of minutes being provided for in the ECB Staff Rules only for meetings with the President.

80      Moreover, the file shows that relations between the Staff Committee whose term of office covered the years 2002 to 2004 and
the ECB were based on a high degree of mutual trust and on open communication, a situation such as to justify the relative
informality of certain meetings.

81      Finally, it is important to add that the ‘special’ consultation procedure followed for the salary adjustment for the years
2001 to 2003 had been agreed upon between the ECB and the Staff Committee, notably as a consequence of the expectation expressed
by the latter in its memorandum of 3 June 2004. The Staff Committee was kept informed of the results of the meetings between
its spokespersons and the ECB representatives, as evidenced by the Staff Committee’s internal memoranda and e‐mails annexed
to the written submissions of the parties. In addition, reference should be made to the memorandum from the Staff Committee
of 14 June 2004 which, by referring to elements of the procedure without expressing any criticism in that regard and by concluding,
in principle, that the consultation procedure was ended (except for the three points to be resolved, see paragraph 27 of this
judgment), must be regarded as containing approval of the lawfulness of the consultation procedure followed in this case.

82      Consequently, the complaint alleging that meetings were held in an irregular manner must be rejected.

–       The complaint alleging that the replies to the Staff Committee’s questions were inadequate

83      The applicants complain that the ECB did not reply formally in writing to the Staff Committee’s letter of 25 March 2004.

84      It must be noted in that regard that the points raised by the Staff Committee in its letter of 25 March 2004 were examined
at the consultation meetings held between April and June 2004. Consequently, the complaint made has no factual basis.

–       The complaint alleging improper recourse to urgency

85      At the hearing, the applicants complained that the ECB imposed a situation of urgency on the Staff Committee and presented
it with a fait accompli.

86      Irrespective of whether it is admissible, this complaint, which is broadly indissociable from the complaint alleging failure
to provide information in good time (see paragraphs 73 to 76 of this judgment), is not justified, in so far as it was the
Staff Committee itself that had asked the ECB, on 3 June 2004, less than two weeks before the meeting of the Executive Board
of the ECB, which was due to decide on the obligatory annual adjustment for 2004, to incorporate the outcome of the ‘special’
consultation regarding the years 2001 to 2003 in that adjustment. In its memorandum of 14 June 2004, the Staff Committee indicated
that it was indeed aware of the proposed timetable for the Executive Board of the ECB to confirm the salary adjustment for
2004.

87      As to the remainder, it is appropriate to refer in rebuttal of those complaints to the considerations set out in paragraphs
74 to 76 of this judgment.

88      Accordingly, the complaint alleging improper recourse to urgency must be rejected.

–       The complaint alleging that the consultation procedure was not concluded when the salary statements for the month of July
2004 were sent out

89      The applicants criticise the ECB for not having concluded the consultation procedure relating to the years 2001 to 2003 before
taking the decision on the salary adjustment in respect of that period.

90      In that regard, it must be pointed out that, by memorandum of 14 June 2004, the Staff Committee itself implicitly proposed
to the ECB directorate that the consultation procedure be concluded, subject to the examination of three specific points not
yet resolved in relation to the data from the Banque nationale de Belgique, the Deutsche Bundesbank and the Commission, on
the understanding that this examination would have to be deferred with a view to incorporating the outcome in the consultation
process of the following year (2005).

91      In that same memorandum, the Staff Committee ‘suggest[ed]’ that ‘the already agreed 0.3% difference ...’ be added to the normal
salary adjustment exercise for 2004 as part of the ‘special’ consultation concerning the years 2001 to 2003, while deferring
the examination of three – specifically mentioned – points to the 2005 salary adjustment exercise. Even though those points
were not yet resolved at the conclusion of the consultation, the Tribunal notes that they were excluded from the consultation
relating to the years 2001 to 2003 and that, in any event, according to the Staff Committee itself, they were likely to have
only a small effect on the end result of the salary adjustment for the years 2001 to 2003.

92      Moreover, the conclusion that the Staff Committee’s memorandum of 14 June 2004 articulates an understanding between that committee
and the ECB on the fact that they were in a position to finalise the results of the ‘special’ consultation (‘the already agreed
0.3% difference ...’), apart from three points which were unresolved but likely to have little effect on that result, is expressly
confirmed by certain members of the previous Staff Committee, as evidenced by the statement of 13 June 2005 from five of them.
Furthermore, that understanding is confirmed by the internal documents of the Staff Committee, produced by the applicants
themselves.

93      Under Article 15 of the Memorandum of Understanding, it was permissible for the Staff Committee to reach an agreement on the
establishment of a simplified consultation procedure, also covering the timing of its conclusion (see paragraph 81 of this
judgment).

94      Concerning the role of the Staff Committee’s spokesperson, Mr van de Velde, and its deputy spokesperson, Mr van der Ark, who
were both signatories to the memorandum of 14 June 2004, it must be pointed out that the Staff Committee was duly represented
by its spokespersons for the purpose of sending that memorandum to the ECB on its behalf (see paragraph 68 of this judgment).
In addition, the minutes of the Staff Committee meeting of 14 June 2004, produced by the applicants themselves, confirm that
that memorandum reflects the position adopted by the majority of the members of the committee.

95      On 15 June 2004, the Executive Board of the ECB approved the proposal of the President of the ECB for an increase of 0.3%
in respect of the special salary adjustment for the years 2001 to 2003 and resulting from the consultation procedure.

96      It follows that the Staff Committee agreed to the conclusion of the consultation procedure and to the principle of a 0.3%
salary increase for the years 2001 to 2003, payable from the month of July 2004.

97      That finding is not invalidated by the applicants’ argument regarding the letter from the new Staff Committee of 25 June 2004.
That letter amounts to a unilateral attempt on the part of that committee to reopen the consultation which had been concluded.
However, the ECB did not agree to the new Staff Committee’s request to reverse the position expressed by the previous Staff
Committee regarding the conclusion of the consultation. Consequently, on 1 July 2004, the Governing Council adopted the proposal
of the President of the ECB, approved by the Executive Board on 15 June 2004, which was based on the result of the consultation
as expressed in the memorandum from the Staff Committee of 14 June 2004.

98      In that regard, the written reply of 7 July 2004 from the ECB to the Staff Committee, stating that ‘the Administration still
regards this exchange as ongoing’ and that ‘any remaining differences will be made up for in the next GSA’, does not constitute
confirmation that, as far as the ECB was concerned, the consultation for the purpose of the salary adjustment for the years
2001 to 2003 was still open, despite the Governing Council’s approval of the 0.3% salary increase on which the two parties
had expressed their agreement. In the context of the correspondence between the Staff Committee and the ECB on the subject
of the ‘special’ adjustment for the years 2001 to 2003, that reply must be construed as a reference to the three minor points
specifically deferred by the previous Staff Committee in its memorandum of 14 June 2004 for examination in the following annual
adjustment exercise, that is, in 2005.

99      In the light of all the foregoing, it must be held that the evidence adduced by the applicants in support of their complaints
does not, even taken as a whole, demonstrate a breach of the requirements inherent in the procedure for consulting the Staff
Committee prior to the adoption of the decision adopting the salary adjustment for the years 2001 to 2003. Consequently, and
without there being any need to rule on its admissibility, the first plea in law, considered in its various parts, must be
rejected.

*The second plea in law, alleging non-compliance with the methods of calculation, a manifest error of assessment and breach
of the obligation to state reasons*

 Arguments of the parties

100    By this plea in law, the applicants criticise, in essence, the fact that the ECB took as its basis data which were manifestly
incorrect, and thus failed to comply with the methods of calculation and the obligation to state reasons for the salary adjustment
in respect of the period covering the years 2001 to 2003.

101    In the applicants’ submission, the tables drawn up by the ECB at the start of the consultation procedure, that is, on 9 January
2004, are vitiated by manifest errors and reveal a misapplication of the method of calculation. In particular, the fact that
the ECB took into account only as from 2002 the advantage represented by the reduction in working time granted to the staff
of the Banque de France constitutes a manifest error, since the staff of the Banque de France benefited from February 2001
from the positive consequences of Loi no 2000‐37 du 19 janvier 2000, relative à la réduction négociée du temps de travail (Law No 2000‐37 of 19 January 2000 on the
negotiated reduction of working time; ‘the Law on the reduction of working time’). The fact that the ECB did not take into
account the data relating to the special increase granted by the Deutsche Bundesbank to employees working in the former East
Germany also constitutes a manifest error.

102    The ECB points out that it is entirely dependent on the comparator organisations as regards the relevance and accuracy of
the source data to be taken into account and the speed with which they are collected and sent in. It should be borne in mind
that the source data are not limited to a single parameter, but cover a multitude of factors, such as the number of employees,
the duration of the working week, the number of holidays, the status of the employees (public service or private sector),
and so forth. In those circumstances, the ECB can only rely on the accuracy and relevance of the data which are sent in to
it in that way. It was only in the event of a manifest error that it would have been obliged to contact the comparator organisation
from which the incorrect data originated, in order to ascertain their accuracy. However, in this case, there was no manifest
error among the source data communicated by the comparator organisations.

103    The ECB acknowledges that the question of taking into account the reduction of working time granted to the staff of the Banque
de France was raised in the Staff Committee’s letter of 25 March 2004, but contends that this question was resolved during
the consultation to the satisfaction of the Staff Committee, there being no further mention of it in ‘the agreement of 14
June 2004’. As regards the Deutsche Bundesbank, the ECB questions whether the complaint relating to that alleged manifest
error is admissible under the rules laid down by Article 44(1)(c) of the Rules of Procedure of the Court of First Instance
and whether it is well founded, referring to ‘the agreement of 14 June 2004’ which provided for subsequent discussion of those
data. Finally, it does not see what bearing this has on the salary adjustment for the years 2001 to 2003.

 Findings of the Tribunal

104    Even though the applicants allege, in support of their second plea in law, a ‘breach of the obligation to state reasons’,
their arguments relate exclusively to the substantive, and not the formal, legality of the decisions at issue.

105    In their application, the applicants complain only of a ‘manifest error’ which resulted in non-compliance with the method
of calculation, on two counts:

–        first, the ECB did not properly take into account the salary implications of the reduction of working time of employees of
the Banque de France for the methods of calculation,

–        secondly, the ECB failed to pass on to the salaries of its members of staff the effects of a special increase granted to employees
of the Deutsche Bundesbank working in the former East Germany.

106    In order to deal with those two complaints, the only ones raised by the applicants, it is necessary to examine whether the
ECB made manifest errors of assessment by relying, for the purpose of drawing up the tables required to determine the average
trend of nominal salaries as provided for by the method of calculation, on the abovementioned source data originating from
the Banque de France and the Deutsche Bundesbank.

107    As regards the Banque de France, the applicants do not provide any evidence to show that the ECB should have drawn appropriate
inferences from an application of the Law on the reduction of working time to all the staff of that bank as from 2001. On
the other hand, they produce three documents, entitled ‘notes on implementation’, originating from that bank and concerning
an ‘enterprise-level agreement on the duration, organisation and flexibility of the working time of professional and managerial
employees’, of 13 February, 6 April and 6 June 2001, which concern only that single category of staff. The information contained
in those notes is the same as that sent in by the Banque de France, in so far as the latter had informed the ECB that that
category of staff represented only 1 000 to 1 100 persons, whereas the enterprise-level agreement, which applied to all staff
(approximately 15 000 persons) had entered into force only on 1 January 2002. However, according to the simulations carried
out by the ECB in the presence of the Staff Committee representatives, which have not been seriously challenged by the applicants,
the increases in the salaries of professional and managerial employees of the Banque de France resulting from the application
of the Law on the reduction of working time had no significant positive effect on the end result of the adjustment of ECB
staff salaries for 2001.

108    With regard to the situation of the Deutsche Bundesbank, particular attention must be drawn to two aspects of it. First, as
regards the special increase granted to its employees working in the former East Germany, that bank had informed the ECB that
the point of view originally expressed by the Staff Committee on the effects of that special increase was incorrect. The Staff
Committee subsequently accepted that explanation and did not, therefore, include in its memorandum of 14 June 2004 the question
of the salaries of Deutsche Bundesbank employees working in the former East Germany among the points which remained to be
resolved. Consequently, this issue was resolved in the course of the consultation procedure, before the conclusion of that
procedure on 14 June 2004. Secondly, the reservation concerning the Deutsche Bundesbank, mentioned in the Staff Committee’s
memorandum of 14 June 2004 as one of the three points still remaining to be settled, referred to another question, namely
that of the percentage of the general salary increase for 2001 and 2002. That reservation was analysed in September 2004 and
therefore settled in the 2005 salary adjustment exercise, as had been agreed between the Staff Committee and the ECB.

109    Moreover, if, on 14 June 2004, the two parties to the negotiations, after checking the data from the Banque de France and
the Deutsche Bundesbank, agreed that the proposed salary adjustment took proper account of those questions, it is difficult
to identify the manifest error which the ECB is supposed to have committed in that regard in the light of the vagueness of
the complaints made in this respect by the applicants and of the inadequacy of the evidence adduced in support of those complaints.

110    It follows that the applicants have not demonstrated either a failure to comply with the method of calculation or the existence
of a manifest error committed by the ECB in the examination of the source data originating from the Banque de France and the
Deutsche Bundesbank.

111    In the light of all the foregoing, the second plea in law must also be rejected.

*The third plea in law, alleging failure to apply retroactively the corrections to be made to the general salary adjustment*

 Arguments of the parties

112    The third plea in law comprises three parts, alleging breach of the principle of legality, failure to observe the principles
of the methods of calculation and breach of the principle of the protection of legitimate expectations. By those three parts
of the plea in law, the applicants criticise, in essence, the fact that the ECB did not apply the method of calculation retroactively,
even though such retroactivity was required.

113    In order to explain on what basis retroactivity of the salary increase is justified, the applicants refer primarily to the
principle of legality which, in their submission, requires the administrative authority to define its action and decisions
in compliance with the law applicable to it and to restore the rule of law where it has been disregarded. As regards incorrect
data, the onus is on the authority to restore the rule of law *ab initio*, that is to say, with retroactive effect.

114    In that regard, the applicants maintain that the comparator organisations make retroactive corrections whenever necessary.
They thus cite the example of the Community legislature, which adopted Council Regulation (EC, Euratom) No 2148/2003 of 5
December 2003 correcting with effect from 1 July 2002 the remuneration and pensions of officials and other servants of the
European Communities (OJ 2003 L 323, p. 1), and the example of the employees of the Banca d’Italia, who benefited from an
additional increase in their salaries for the period 2002 to 2003, in pursuance of a decision taken in October 2004. The ECB
should apply the same principle and give retroactive effect to its corrective decisions.

115    In addition, the applicants complain that the ECB did not honour the commitment which it gave in its memorandum of 16 December
2003 addressed to all its staff. That commitment should be assessed in the light of other statements made by the ECB and in
particular those contained in a memorandum of ‘7 July 1999’ (the applicants are in fact referring to a memorandum of 7 May
1999) stating that the objective of the method of calculation is to enable the ECB to remain in line with the level of remuneration
of its principal sources of recruitment, namely the comparator organisations.

116    The ECB points out that the salary increases at issue are the result of a mere ‘voluntary commitment’ on its part, a description
which, it contends, is accepted by the applicants themselves. The implementation of such a commitment cannot, therefore, give
rise to statutory obligations. It refers to the case-law of the Court of Justice which, in its order in Case C‐315/97 P *Echauz Brigaldi and Others* v *Commission* [1999] ECR I‐1287, paragraph 11, confirmed the judgment of the Court of First Instance in Case T‐156/95 *Echauz Brigaldi and Others* v *Commission* [1997] ECR‐SC I‐A‐171 and II‐509, by which the latter Court ruled that an advantage granted by an institution to its officials,
as a favour and not under a legal obligation laid down in the Staff Regulations, did not oblige another institution to grant
the same treatment to its own officials. The Court of First Instance therefore held that the principle of equal treatment
had not been contravened.

117    Moreover, the ECB denies any ‘legitimate expectations’ on the part of the applicants, since consultation of the Staff Committee
does not imply that the latter’s opinion is binding. It further points out that the salary increase decided upon in July 2004
is a voluntary measure which cannot, therefore, create the obligation to give retroactive effect to the salary adjustment
resulting from the consultation.

 Findings of the Tribunal

118    By this plea in law, the applicants seek a ruling that the ECB was wrong not to increase their salaries for the years 2001
to 2003, when the consultation initiated following the memorandum of 16 December 2003 applied retroactively to those years.

119    In that regard, it is necessary to examine together the three parts of the third plea in law, in so far as they are connected
and the applicants have put forward a single series of arguments in support of them.

120    Consequently, it must be determined whether the consultation of the Staff Committee, launched in pursuance of the memorandum
of 16 December 2003, followed by the application to the results of that consultation of the method of calculation in force
in the years 2001 to 2003 should, as the applicants maintain, have had as its consequence the retroactive payment, for each
of the years concerned, of the salary increase which was the result of the consultation.

121    It is important to note at the outset that, in order to comply with the judgment in *Cerafogli and Poloni* v *ECB*, which had declared unlawful the procedure for adjusting the salaries of the ECB staff for 2001, the ECB was obliged, in
order to remedy the defect criticised by the Court of First Instance, to consult the Staff Committee in a regular and appropriate
manner with regard to the salary adjustment for that same year. By its very nature, such a measure, which could not be construed
as applying solely to the situation of Ms Cerafogli and Mr Poloni, was necessarily of general application.

122    It must be added that the ECB extended the consultation to the years 2002 and 2003 as a consequence of the commitment which
it had given to all staff by its memorandum of 16 December 2003 entitled ‘Judgment of the Court of First Instance on the 2001
General Salary Adjustment’. As it conceded during the hearing and contrary to what it maintained in its written pleadings,
that commitment implied the obligation to apply the method of calculation in force to the result of the consultation thereby
extended.

123    The parties disagree, however, as to the financial consequences of that consultation and of the obligation to apply the method
of calculation to the result of that consultation. While the applicants claim that, in order to comply with the judgment in
*Cerafogli and Poloni* v *ECB*, the ECB was required to extend the benefit of any salary increases resulting from the consultation to all staff, the ECB
denies that the judgment in question has any such effect.

124    In this case, it is not necessary to adjudicate on whether, under Article 233 EC, the ECB was required to extend the benefit
of the salary increases resulting from the consultation, including in respect of the period prior to delivery of the judgment,
to all the staff of the ECB, in the light, in particular, of the nature of the illegality found. It is sufficient to note
that the ECB itself considered that it was under a duty to set within a binding framework applicable to all staff, and not
only to Ms Cerafogli and Mr Poloni, and covering the three years in question, both the consultation, as the preparatory stage
of the salary adjustment procedure, and the ensuing stages of that procedure, including the final stage consisting of the
adjustment of the salary of each member of staff.

125    In those circumstances, it is necessary to establish the manner in which the method of calculation for the salary adjustment
was applied in respect of all the years from 2001 to 2003.

126    To begin with, the main aspects of the method of calculation and the differences between, on the one hand, GSA 1999-2001 and,
on the other, GSA 2002-2004 need to be recalled (see paragraphs 13 to 17 of this judgment).

127    In essence, the method of calculation consisted in using, on a basis of trust, the source data sent in by the comparator organisations,
without the ECB’s having been in a position to check them in detail.

128    In addition, GSA 1999-2001 did not provide for any possibility of correcting the results of the method of calculation and,
although GSA 2002-2004 provided for the possibility of such corrections, that possibility was limited in two ways. First,
those GSA allowed corrections only on account of data lacking on the normal date of the salary adjustment, that is to say,
corrections made applying data which the comparator organisations were late in sending in, and not corrections on account
of the subsequent discovery of errors in the source data sent in and taken into account for the purposes of the adjustment.
Secondly, the corrections thus made would not be retroactive. Consequently, only the corrections resulting from data which
were originally lacking but became available between the last adjustment and the adjustment for the following year would take
effect on the latter due date; the first application of that possibility of correction could therefore have taken place only
on 1 July 2003, in respect of data referring to 2002 which, having been sent in late, could not have been taken into account
for the purpose of calculating the adjustment decided upon on 1 July 2002.

129    It must also be acknowledged that it would have been artificial to undertake a fresh consultation of the Staff Committee on
the basis of the information available at the time of the original consultation while disregarding the information which had
become available subsequently, namely the corrected data.

130    Likewise as regards 2002, account must be taken of the difficulty of applying, on the basis of the data relating to that year
and received in 2004, a 0.4% salary reduction resulting from the calculation made on the basis of the corrected data included
in the tables drawn up by the ECB during the consultation procedure.

131    Moreover, even if those operations had been possible, the ECB’s system for producing salary statements was not, according
to it, capable of retroactively recalculating the salaries from 2001 onwards, a fact which was also acknowledged by the Staff
Committee in its memorandum of 4 August 2004.

132    According to case-law, when compliance with a judgment annulling a measure poses special difficulties, the institution concerned
may take any decision which is such as to compensate fairly for the disadvantage resulting for the persons concerned from
the annulled decision. In that context, the administration may establish a dialogue with them with a view to seeking to reach
an agreement offering them fair compensation for the illegality of which they were victims (Case T‐91/95 *De Nil and Impens* v *Council* [1996] ECR‐SC I‐A‐327 and II‐959, paragraph 34; Case T‐81/96 *Apostolidis and Others* v *Commission* [1997] ECR‐SC I‐A‐207 and II‐607, paragraph 42; and Case T‐177/97 *Simon* v *Commission* [2000] ECR‐SC I‐A‐75 and II‐319, paragraph 23).

133    In this case, in view of all the factors mentioned in paragraphs 126 to 131 of this judgment, the ECB opted for a simplified
approach, that of payment of the cumulative result of the salary adjustment covering the years 2001 to 2003, recorded following
the consultation procedure, on the date on which the salary adjustment for 2004 took effect, namely 1 July 2004. That solution
was implicitly accepted by the Staff Committee by the memorandum of 14 June 2004 in which it did not reiterate its demand
for retroactive payment, made in its memorandum of 25 March 2005 and repeated at several technical meetings.

134    The cumulative result at which the ECB thus arrived is the fruit of a compromise solution reached between it and the Staff
Committee which made it possible to adapt and combine in a simplified manner the method of calculation. That compromise solution
consisted of several elements:

–        first, concerning 2001, the possibility of taking into account the corrected data, once they became available, which had not
been provided for by GSA 1999-2001 but only by GSA 2002-2004;

–        secondly, the taking into account of all the relevant data in respect of the year for which the salaries were to be adjusted,
and not only in respect of the year during which those data had become available as provided for by GSA 2002-2004;

–        thirdly, not limiting the possibility of taking into account ‘corrected’ data, that is, those which were not available or
were incomplete in respect of the year for which the salaries were to be adjusted, to the payment made the following year;

–        fourthly, the payment, from 1 July 2004, of a 0.3% increase, representing the cumulative result of the variations calculated
for the years 2001 to 2003 on the basis of the correct data on which the Staff Committee and the ECB agreed (+ 0.3% for 2001, –
0.4% for 2002, + 0.4% for 2003, that is, 0.3%).

135    It follows that, while the ECB did not confer on the salary increase resulting from the consultation the retroactive effect
demanded by the applicants, it did, in order to make up for that, first, use data which had been corrected (upwardly) for
2001, which would not have been possible at the time under the rules then in force and, secondly, extend the consultation
to the years 2002 and 2003 and the results of that consultation to all staff, in contrast to the position whereby only the
applicants in *Cerafogli and Poloni* v *ECB* should have benefited from them. The ECB thereby opted for a solution which was not only balanced, but also had a structural
effect on the salary and pension scales.

136    In the light of the abovementioned special difficulties involved in complying with the judgment in *Cerafogli and Poloni* v *ECB*, it must be held that the decision taken on the basis of the results of the consultation procedure relating to the salary
adjustment for the years 2001 to 2003 must be regarded as a reasonable and fair solution within the meaning of the case-law
cited in paragraph 132.

137    That finding is not invalidated by the arguments put forward by the applicants.

138    First, as regards the argument concerning the retroactive corrections made by certain comparator organisations, it must be
held that such a practice is fully consistent with the mechanism provided for by GSA 2002-2004, namely a correction of the
salaries, on the basis of actual source data, in the year following that of the event giving rise to the salaries. In any
event, retroactive corrections made by certain comparator organisations do not lead to any obligation for the ECB to grant
salary adjustments retroactively, since those practices, even if they are based on national or Community legislation, are
binding only on those organisations and not on the ECB.

139    Secondly, contrary to what the applicants claim, the ECB, by adopting in this case an equitable solution for all its staff,
honoured the commitment given in its memorandum of 16 December 2003 to act upon the judgment given by the Court of First Instance.

140    Consequently, the third plea in law must be rejected. The claims for annulment must therefore be dismissed as unfounded

2.     *The claims for damages*

*Arguments of the parties*

141    The applicants point out that the wrongful acts alleged caused them damage in so far as they were unable to have at their
disposal, from 1 July 2001, 1 July 2002 and 1 July 2003, the salary due to them, that is to say, a salary fixed in accordance
with the method of calculation and at the conclusion of a properly conducted consultation. Without being able to calculate
precisely the amount of the damage caused to them, they propose that it be fixed, on an equitable and provisional basis, at
EUR 5 000 per applicant.

142    The ECB contends that it has demonstrated to the requisite standard that it has not committed any illegality. Consequently,
the claim for compensation has no legal basis. In financial terms, the applicants benefited from a 0.3% increase granted by
the ECB, not by reason of a statutory obligation, but by reason of a staff policy decision.

*Findings of the Tribunal*

143    According to settled case-law, claims for compensation for material or non-material damage must be rejected in so far as they
are closely associated with the claims seeking annulment which have themselves been dismissed as unfounded (see Case T‐72/01
*Pyres* v *Commission* [2003] ECR‐SC I‐A‐169 and II‐861, paragraph 85, and the case-law cited).

144    In this case, since examination of the pleas in law put forward in support of the claims for annulment of the salary statements
for the month of July 2004 has not revealed any unlawfulness attributable to the ECB and thus no fault of such a kind as to
render it liable, the claims for compensation for the damage allegedly suffered by the applicants as a result of alleged illegalities
must also be rejected as unfounded.

3.     *General conclusions*

145    It follows from all the foregoing that the claims for annulment and compensation are not well founded and that it is no longer
necessary to adjudicate on the claims seeking production of the administrative file. Consequently, the action must be dismissed
without there being any need to rule on its admissibility, given that the ECB has raised a number of objections of inadmissibility
relating, in particular, to the lateness of the requests for administrative review and to the lateness of Mr Poloni’s grievance
received by the ECB on 14 December 2004, outside the two-month period which, according to the ECB, expired on 13 December
2004.

**Costs**

146    Under Article 122 of the Rules of Procedure, the provisions of Title 2, Chapter 8, on costs are to apply only to cases brought
before the Tribunal from the date on which those Rules enter into force, namely on 1 November 2007. The relevant provisions
of the Rules of Procedure of the Court of First Instance on the subject are to continue to apply *mutatis mutandis* to cases pending before the Tribunal before that date.

147    Under Article 87(2) of the Rules of Procedure of the Court of First Instance, the unsuccessful party is to be ordered 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. Since the applicants
have been unsuccessful, the parties must be ordered to bear their own costs

On those grounds,

THE TRIBUNAL (Full Court)

hereby:

1.      **Dismisses the action;**

2.      **Orders the parties to bear their own costs.**

| | | |
| --- | --- | --- |
| Mahoney | Kreppel | Van Raepenbusch |

| | | |
| --- | --- | --- |
| Boruta | Kanninen      Tagaras | |

Gervasoni

Delivered in open court in Luxembourg on 24 June 2008.

| | | |
| --- | --- | --- |
| W. Hakenberg | | P. Mahoney |

| | | |
| --- | --- | --- |
| Registrar | | President |

The text of the present decision and those of the decisions of the Community Courts cited in it which have not yet been published
in the European Court Reports are available on the internet site of the Court of Justice: www.curia.europa.eu

Annex

**Maria Concetta Cerafogli,** a member of staff of the European Central Bank, residing in Frankfurt am Main (Germany),

**Marion Kotowski,** a member of staff of the European Central Bank, residing in Frankfurt am Main (Germany),

**Emmanuel Larue,** a member of staff of the European Central Bank, residing in Frankfurt am Main (Germany),

**Paolo Poloni,** a member of staff of the European Central Bank, residing in Frankfurt am Main (Germany),

**Olivier Seigneur,** a member of staff of the European Central Bank, residing in Frankfurt am Main (Germany),

**Ali Shikhane,** a member of staff of the European Central Bank, residing in Frankfurt am Main (Germany),

**Luca Tagliaretti,** a member of staff of the European Central Bank, residing in Frankfurt am Main (Germany),

**Louisa Vegh,** a member of staff of the European Central Bank, residing in Frankfurt am Main (Germany).

Table of contents

Legal context

Facts

Procedure and forms of order sought by the parties

Law

1.  The claims for annulment

The first plea in law, alleging breach of the obligation to consult the Staff Committee

Arguments of the parties

Findings of the Tribunal

–  The complaint alleging incompleteness of the information provided by the ECB

–  The complaint alleging failure to provide information in good time

–  The complaint alleging that meetings were held in an irregular manner

–  The complaint alleging that the replies to the Staff Committee’s questions were inadequate

–  The complaint alleging improper recourse to urgency

–  The complaint alleging that the consultation procedure was not concluded when the salary statements for the month of July
2004 were sent out

The second plea in law, alleging non-compliance with the methods of calculation, a manifest error of assessment and breach
of the obligation to state reasons

Arguments of the parties

Findings of the Tribunal

The third plea in law, alleging failure to apply retroactively the corrections to be made to the general salary adjustment

Arguments of the parties

Findings of the Tribunal

2.  The claims for damages

Arguments of the parties

Findings of the Tribunal

3.  General conclusions

Costs

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[1](#Footref1)? Language of the case: French.