Judgment — ECLI:EU:F:2008:81
Date: 2008-06-24
Language of the case: French
Court formation: Full Court
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Concepts: Effects of a judgment annulling a measure;European Central Bank
Procedure: Staff cases;Action for damages

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 1? Language of the case: French.