JUDGMENT OF THE GENERAL COURT (First Chamber)
23 September 2020 (*)
(Civil service – ECB staff – Career transition support – Eligibility – Legal certainty – Equal treatment – Legitimate expectations – Duty of care – Discrimination on grounds of sex – Proportionality – Liability)
In Case T‑433/18,
Annemieke Bax, residing in Frankfurt (Germany), represented by L. Levi and A. Champetier, lawyers,
applicant,
v
European Central Bank (ECB), represented by F. Malfrère and D. Camilleri Podestà, acting as Agents, and by B. Wägenbaur, lawyer,
defendant,
APPLICATION under Article 270 TFEU and Article 50a of the Statute of the Court of Justice of the European Union for the annulment of, first, the decision of the ECB of 14 December 2017 rejecting the applicant’s application for career transition support and, in so far as necessary, the decision of the
ECB of 8 May 2018 dismissing the applicant’s special appeal against the abovementioned
decision of 14 December 2017 and, second, for compensation for the non-material damage which the applicant claims to have suffered,
THE GENERAL COURT (First Chamber),
composed of P. Nihoul, acting as President, J. Svenningsen and U. Öberg (Rapporteur), Judges,
Registrar: P. Cullen, Administrator,
having regard to the written part of the procedure and further to the hearing on 27 November 2019,
gives the following
Judgment
Background to the dispute
Legal framework
1        Article 36, entitled ‘Staff’, of Protocol No 4 on the Statute of the European System of Central Banks and of the European Central Bank (‘the ESCB Statute’), annexed to the EU Treaty and the FEU Treaty, provides:
‘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 Union 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.’
2        On the basis of Article 36.1 of the Protocol on the ESCB Statute, the Governing Council of the European Central Bank (ECB) adopted, by decision of 9 June 1998, as amended on 31 March 1999 (OJ 1999 L 125, p. 32), the Conditions of Employment for Staff of the ECB (‘the Conditions of Employment’).
3        Article 9(c) of the Conditions of Employment provides as follows:
‘No specific national law governs these Conditions of Employment. The ECB applies (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. …’
4        On the basis of Article 12.3 of the ESCB Statute, the ECB adopted Decision BCE/2004/2 of 19 February 2004 adopting its Rules of Procedure (OJ 2004 L 80, p. 33; ‘the Rules of Procedure’).
5        Article 21 of the Rules of Procedure provides:
‘21.1.      The Conditions of Employment and the Staff Rules shall determine the employment relationship between the ECB and its staff.
21.2.      The Governing Council, upon a proposal from the Executive Board and following consultation of the General Council shall adopt the Conditions of Employment.
21.3.      The Executive Board shall adopt the Staff Rules, that shall implement the Conditions of Employment.
…’
6        On the basis of Article 36.1 of the ESCB Statute, the Executive Board of the ECB (‘the Executive Board’) adopted Decision ECB/2017/NP19 of 17 May 2017, which entered into force on 1 July 2017, amending the Staff Rules of the ECB as regards support for a voluntary transition to a career outside the ECB.
7        By that decision, the Executive Board established the terms of the career transition support programme applicable to ECB staff (‘the CTS programme’), including the eligibility conditions which candidates were required to meet in order to be granted CTS, those being set out in Annex V to decision ECB/2017/NP19 (‘Annex V’).
8        The CTS programme replaces an earlier ‘pilot’ career transition support programme, established by Decision ECB/2012/NP18, which was examined by the General Court in the case which gave rise to the judgment of 26 March 2020, Teeäär v ECB (T‑547/18, EU:T:2020:119).
9        Article 11(e) of the Conditions of Employment referred to in paragraph 2 above provides that ‘employment contracts may be terminated by mutual consent to support a voluntary transition to a career outside the ECB under the conditions and following the procedure laid down in the Staff Rules’.
10      Article 3 of Annex V, headed ‘Eligibility conditions’, provides that:
‘3.1.      Members of staff who, while holding a fixed-term convertible employment contract or/and an employment contract for an indefinite period, have been in the same salary band for at least 8 consecutive years, and are still in this band at the date of expiry, are eligible to express their interest for being considered for the CTS [programme]. …
…
3.2.      The Executive Board may waive the eligibility conditions set out in paragraph 3.1 in relation to interested members of staff whose participation in the CTS scheme is justified in the interests of the service.’
Factual background
11      The applicant, Ms Annemieke Bax, entered the employment of the ECB in 1999, in salary band F of its salary structure under a fixed-term contract running from 16 June 1999 to 15 June 2001. In December 2000, that contract was converted into a permanent contract in salary band F/G, with effect from 1 January 2001.
12      The applicant was temporarily promoted to salary band H on two occasions – first, on 15 October 2009 to 15 March 2010 (5 months) and, second, from 1 March 2013 to 31 December 2016 (3 years and 10 months). After the first temporary promotion, she returned to salary band F/G, remaining in that band from 16 March 2010 to 28 February 2013.
13      From 1 January 2017, the applicant was definitively promoted to salary band H.
14      On 3 July 2017, within the period allowed, the applicant submitted an application to the CTS programme.
15      Document SEC/EB/X/17/398a.rev-1/final, entitled ‘General Methodology for the Practical Implementation of the Career Transition Support Scheme (CTS)’ (‘the General Methodology’), was adopted in its final version by the Executive Board on 14 December 2017, after Decision ECB/2017/NP19 of 17 May 2017, and after the period for lodging applications for the CTS programme (from 1 July to 31 October 2017) had expired.
16      By email of 15 December 2017, the ECB informed the applicant that, by decision of 14 December 2017, the Executive Board had rejected her application to the CTS programme (‘the first contested decision’) on the grounds that, following the opinion of her Area Head and that of the Chief Executive Officer, first, she did not meet the condition that she had ‘been in the same salary band for at least
8 consecutive years, and [is] still in this
band at the date of expiry’ and, second, she did not meet the criteria for derogation.
17      On 20 January 2018, the applicant submitted a request for access to the documents containing the opinions of the Area Head and Chief Executive Officer, and to all documents that had been used and that were part of the file on the basis of which the Executive Board had decided not to admit her to the CTS programme.
18      On 4 February 2018, the applicant lodged a special appeal on the basis of Article 8.1.6 of the ECB Staff Rules against the first contested decision supplemented, on
28 February 2018, by an additional submission.
The special appeal was dismissed by decision of 8 May 2018 (‘the second contested decision’).
19      On 9 February 2018, in response to her request for access to documents submitted on 20 January 2018, the applicant received the General Methodology and an extract from an Excel table containing the opinions of the Area Head and the Chief Executive Officer, on the question of whether it was in the interest of the business area to grant the applicant access to the CTS programme. Both of those opinions were negative.
20      The General Methodology establishes three high level principles, of which the first, headed ‘General Methodology on the waiving of eligibility conditions in the interest of the service’ relates to the exception provided for in Article 3.2 of Annex V, and describes the concept of ‘interest of the service’. That principle is worded as follows:
‘Pursuant to Article 3.2 of [Annex V], the eligibility conditions referred to in Article 3.1 of [Annex V] are waived in the interest of the service for CTS [programme] applicants who:
(a)      have been promoted ad-personam or who have been promoted from single bands to wider broad bands (e.g. E to E/F or F to F/G) and whose tasks have not substantially changed; or
(b)      fulfil at least three out of the four criteria [the ‘derogation criteria’]:
(i)      [they] have at least fifteen years of service while holding a fixed term convertible employment contract and/or an employment contract for an indefinite period. For the purpose of calculating such period of service the provisions of Article 3.1(a) and (b) shall apply;
(ii)      [they] have reached at least the age of 50 on 31 October 2017;
(iii)      [they] have an average of 6 [Annual Salary & Bonus Review; (ASBR)] steps or less during the last three ASBR exercises preceding 31 October 2017. In case of CTS [programme] applicants not under the managing direction of the Executive Board on 31 October 2017, this criterion is replaced by the assessment of the Area Head of the relevant business area that CTS [programme] participation is in the interest of the business area;
(iv)      [they] are in the I-band or above on
31 October 2017.’
21      Thus, according to the General Methodology, an application is accepted by the ECB only if (1) the candidate fulfils the condition of the principle of having been in the same salary band of whatever kind for eight years; or if (2a) (derogation condition No 1) the candidate was promoted ad personam or was promoted from a single salary band to one of the double salary bands and his or her duties have not changed significantly, or (2b) (derogation condition No 2), the candidate fulfils three of the four derogation criteria set out in paragraph 20 above.
Procedure and forms of order sought
22      The applicant brought the present action before the Court Registry on 13 July 2018.
23      The applicant claims that the Court should:
–        annul the first contested decision;
–        if necessary, annul the second contested decision;
–        order the ECB to pay the sum of EUR 20 000 in compensation for the non-material harm suffered;
–        order the ECB to pay the costs.
24      The ECB contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
Law
The claim for annulment
25      In support of her claim for annulment, the applicant puts forward five pleas in law alleging, first, infringement of the principles of legal certainty, transparency and non-discrimination; second, the illegality of the decision adopting the General Methodology in the light of Decision ECB/2017/NP19; third, breach of the duty of care; fourth, discrimination on grounds of sex; and, fifth, infringement of the principle of proportionality by the use of disproportionate derogation criteria.
26      The Court considers it appropriate to analyse the pleas in the following order: the second plea, the fourth plea other than the examination of the proportionality of the measure at issue, the fifth plea taken together with the part of the fourth plea relating to proportionality, the first plea and, finally, the third plea.
The alleged illegality of the General Methodology
27      The ECB contends that the second plea is inadmissible.
28      In that regard, it must be held that the applicant is not entitled to challenge indirectly the legality of the General Methodology communicated to her by the Executive Board on 9 February 2018.
29      That document, drawn up in its final version on the same day as that on which the first contested decision was adopted, is, by its nature, akin to an internal document of the competent body and its scope is limited.
30      In the present case, the General Methodology was used as a tool to assist the competent body in the selection and admission of applications with a view to ensuring equal treatment, in particular as regards the use of the derogation relating to the interests of the service provided for in Article 3.2 of Annex V.
In order to achieve that objective, faced with a significant number of decisions to be adopted, such an approach is a matter of sound administration, since it was a useful means of ensuring uniform application of the concept of the interests of the service to all of the candidates.
31      In that regard, it should be noted that that document did not have the purpose or effect of binding the ECB in the individual decisions which that institution was required to take. A body with a certain discretion cannot be required to determine in advance the manner in which it will exercise that discretion. That is particularly so in the case of decisions to be taken in the context of the selection of applications to be received in a ‘decommitment’ programme such as the CTS programme, the achievement of which, in accordance with the objectives it pursues, depends on several factors, including the number and type of applications which that programme will accept from staff members and the limits of the budget allocated, as the ECB has argued.
32      The General Methodology was then used in the statement of reasons for the individual decisions or, in any event, in the statement of reasons for the first contested decision, by referring to the criteria taken into account for the assessment of the interests of the service in the context of the second derogation provided for in Article 3.2 of Annex V.
That use in the statement of reasons for the first contested decision is, consequently, relevant only in the context of the assessment of the merits of the second part of the first plea, relating to the principle of transparency, in so far as the applicant claims that the General Methodology should have been communicated previously as such to staff members.
33      It should also be noted that the sole specific legislative provision which the applicant could invoke in order to seek the benefit of decommitment measures, the legality of which could be challenged, was Decision ECB/2017/NP19 of 17 May 2017, which entered into force on 1 July 2017.
34      Definitive measures terminating service do not have their legal origin in the ESCB Statute and do not constitute an ordinary element of the careers of the persons concerned. Such measures must, on the contrary, be regarded as a practice to which the European Union has resorted in specific cases in the interest of the proper functioning of its institutions.
35      It follows, first, that a request to benefit from such a decommitment measure presupposes the existence of a specific and lawful legislative provision which supplies a legal basis for it and, second, that even if there is such a provision, the institution concerned is not obliged either to grant the requests submitted to it or to make even partial use of the power conferred on it to decide to terminate the service of some of its officials or agents (see, by analogy, judgment of 5 October 2000, Council v Chvatal and Others, C‑432/98 P and C‑433/98 P, EU:C:2000:545, paragraph 29).
36      In those circumstances, the second plea must be rejected as being inadmissible.
The alleged discrimination on grounds of sex
37      The ECB contends that the fourth ground of appeal is inadmissible.
38      In that regard, it should be recalled that, in the interests of procedural economy and in compliance with the principle of the sound administration of justice, the Courts of the European Union are entitled to assess, according to the circumstances of each case, whether the proper administration of justice justifies the dismissal of a plea in law on its merits without first ruling on its admissibility (judgments of 11 July 2014, DTS Distribuidora de Televisión Digital v Commission, T‑533/10, EU:T:2014:629, paragraph 170, and of 14 September 2015, Brouillard v Court of Justice, T‑420/13, not published, EU:T:2015:633, paragraph 18; see also, to that effect, judgment of 26 February 2002, Council v Boehringer, C‑23/00 P, EU:C:2002:118, paragraphs 51 and 52).
39      In the circumstances of the present case, the Court considers it appropriate to begin by examining the merits of the fourth plea, without first ruling on its admissibility.
40      In its fourth plea, the applicant claims, in the first place, that the first and second contested decisions give rise to indirect discrimination on grounds of sex and submits, on the basis of statistical data, that significantly fewer women than men have benefited from the CTS programme.
41      As regards the applications accepted, out of a total of 217 persons applying for the CTS programme, 192 persons were proposed to take part in the programme and 183 persons accepted the offer. It appears that, of the 183 candidates who had been successful, only 49 candidates were women, which is equivalent to 27%.
42      As regards the applications which had been rejected, 25 applications had been rejected, including 19 applications from women and 6 from men, which means that 75% of the applications rejected were from women.
43      The applicant submits that, in the absence of any objective justification capable of explaining this difference in treatment, it constitutes indirect discrimination on grounds of sex within the meaning of Article 2(1)(b) of Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (OJ 2006 L 204, p. 23), which is prohibited by Article 14 of that directive.
44      The applicant submits, in the second place, that, as the ECB acknowledges, the majority of members of staff in salary bands I or above are men. The condition requiring being in salary band I or a higher band, which was one of the conditions to be fulfilled in order for staff members to be accepted in the ‘interests of the service’ to apply for the CTS programme, accordingly favoured men.
45      Without calling into question the applicant’s factual and statistical claims, the ECB disputes her line of argument alleging discrimination on grounds of sex.
–       The relevant legal framework
46      As a preliminary point, the Court notes that the principle of equal treatment for men and women in matters of employment and, at the same time, the principle of the prohibition of any direct or indirection discrimination on grounds of sex, as enshrined in the first paragraph of Article 23 of the Charter of Fundamental Rights of the European Union (‘the Charter’), form part of the fundamental rights the observance of which the Courts of the European Union must ensure (see, to that effect, judgment of 28 January 1992, Speybrouck v Parliament, T‑45/90, EU:T:1992:7, paragraph 47).
47      According to the second subparagraph of Article 3(3) TEU:
‘[The Union] shall combat social exclusion and discrimination, and shall promote social justice and protection, equality between women and men …’
48      According to Article 8 TFEU:
‘In all its activities, the Union shall aim to eliminate inequalities, and to promote equality, between men and women.’
49      Paragraph 21(1) of the Charter states:
‘Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.’
50      Under Article 19(1) of Directive 2006/54, where persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or any other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it is for the other party to prove that there has been no breach of the principle of equal treatment (see, to that effect, judgments of 19 October 2017, Otero Ramos, C‑531/15, EU:C:2017:789, paragraph 52, and of 19 September 2018, González Castro, C‑41/17, EU:C:2018:736, paragraph 60).
51      In implementing the principle of equal treatment, the Union seeks, for all its actions, to eliminate inequalities, and to promote equality, between men and women, in accordance with Article 8 TFEU, in particular because women are often the victims of multiple discrimination, as is stated in recital 3 of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16).
52      Consequently, the fundamental rule of Directive 2000/78, to the effect that there must be no discrimination based on any of the grounds for a difference of treatment to which it refers (Article 2(1) together with Article 1) must also apply to cases involving possible discrimination based on a combination of more than one ground.
53      As stated in Article 9(c) of the Conditions of Employment, cited in paragraph 3 above, the general principles of law common to the Member States, the general principles of EU law and the rules contained in the regulations and directives on social policy addressed to the Member States apply to the EU institutions.
54      According to settled case-law of the Court of Justice, the principle of non-discrimination requires that comparable situations must not be treated differently and different situations must not be treated alike unless such treatment is objectively justified (judgments of 20 June 2019, Ustariz Aróstegui, C‑72/18, EU:C:2019:516, paragraph 28; see, also, judgment of 19 December 2019, HK v Commission, C‑460/18 P, EU:C:2019:1119, paragraph 66 and the case-law cited).
55      The comparability of different situations must be assessed with regard to all the elements which characterise them. Those elements must, in particular, be determined and assessed in the light of the subject matter and purpose of the EU act which makes the distinction in question. The principles and objectives of the field to which the act relates must also be taken into account (judgments of 16 December 2008, Arcelor Atlantique et Lorraine and Others, C‑127/07, EU:C:2008:728, paragraph 26; of 6 June 2019, P.M. and Others, C‑264/18, EU:C:2019:472, paragraph 29; and of 19 December 2019, HK v Commission, C‑460/18 P, EU:C:2019:1119, paragraph 67).
56      It should be recalled that Article 2(l)(b) of Directive 2006/54 states that ‘indirect discrimination’ occurs where an apparently neutral provision, criterion or practice would put persons of one sex at a particular disadvantage compared with persons of the other sex, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.
57      The existence of
a particular disadvantage may be established, for example, if it were proved that legislation such as that at issue is to the disadvantage of a significantly greater proportion of individuals of one sex as compared with individuals of the other sex (see, to that effect, judgment of 8 May 2019, Villar Láiz, C‑161/18, EU:C:2019:382, paragraph 38 and the case-law cited).
58      The Court of Justice has consistently held that indirect discrimination on grounds of sex arises where a measure, albeit formulated in neutral terms, puts considerably more workers of one sex at a disadvantage than the other (see judgment of 18 March 2014, Z., C‑363/12, EU:C:2014:159, paragraph 53 and the case-law cited).
59      In that regard, the Court of Justice has already held that, as is also apparent from recital 30 of Directive 2006/54, the assessment of the facts from which it may be presumed that there has been indirect discrimination is a matter for the court hearing the case and that indirect discrimination may be established by any means, including on the basis of statistical evidence (see judgment of 3 October 2019, Schuch-Ghannadan, C‑274/18, EU:C:2019:828, paragraph 46 and the case-law cited).
60      As regards statistical data, the Court of Justice has already held, first, that it was for the court hearing the case to take into account all those workers subject to the legislation in which the difference in treatment has its origin and, second, that the best approach to the comparison is to consider the respective proportions of men in the workforce affected by the rule at issue and of those not affected thereby, and to compare those proportions as regards women in the workforce (see judgment of 3 October 2019, Schuch-Ghannadan, C‑274/18, EU:C:2019:828, paragraph 47 and the case-law cited).
61      If the General Court, on the basis of the statistics produced and, as the case may be, other relevant facts, reaches the conclusion that the legislation at issue places women at a particular disadvantage compared with men, such legislation would be contrary to the rule laid down in Article 2(1)(b) of Directive 2006/54, unless it is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.
62      It is in the light of those principles, identified from the case-law of the Court of Justice, that it is necessary to examine whether the applicant has established facts from which it may be presumed that there has been direct or indirect discrimination, in which case it would be for the ECB to prove that there has been no infringement of the principle of equal treatment and, in particular, that the difference in treatment which may arise from the first contested decision is justified by objective factors unrelated to any discrimination on grounds of sex.
–       The presumption of the existence of direct or indirect discrimination
63      It is common ground that both male and female employees of the ECB may benefit from the measures for release from service provided for under the CTS programme.
64      However, notwithstanding that appearance of neutrality, it is clear that the eligibility criteria and the number of candidates not included in the CTS programme appear to have led to a much higher percentage of women than men having their applications rejected. As the applicant has rightly pointed out, out of the 25 applications rejected, 19 applications or 75% came from women. As compared with the total number of applications, approximately 29% of those from women and only 4% of those from men were rejected.
65      The Court finds, however, that the presence of a higher number of women in the category of persons not admitted to the programme could be explained by the presence of a greater number of men in the staff of the institution in the highest salary bands. Indeed, 146 men and 71 women applied for the CTS programme, which means that the male to female candidate ratio was approximately 2 to 1 (or 33% women for 66% men). Thus, the bigger proportion of men selected (73%) is explained at first sight by the fact that the number of men who applied was greater, the difference between the latter two percentages not being significant.
66      However, the ECB has acknowledged that there are more men than women in salary group I or higher salary bands and that it was aware, in establishing the eligibility criteria and the CTS programme derogation criteria, that more men than women would be eligible.
67      It is therefore established in the present case that the derogation criterion relating to being in salary band I or a higher salary band, for the purposes of applying the concept of interests of the service, favours men, since the majority of ECB staff who are in salary band
I or in a higher salary band are men.
68      In contrast, as regards female employees of the ECB, the effect of the same criterion was, in the present case, to reduce considerably the number of such employees who were in fact likely to benefit from the decommitment measure.
69      In that regard, in order to provide prima facie evidence of discrimination on grounds of sex, it is not necessary to show that the derogation criteria by themselves explain that more men than women had their applications selected and that more women than men had their applications rejected.
70      It is not necessary to establish a direct link with the factor giving rise to indirect discrimination on grounds of sex, since it is not essential that the grounds of discrimination in question be the only, indeed decisive, reasons for the decision to place an applicant at a disadvantage. A causal link is therefore present even where the ground of discrimination is one of the many factors which constitute the cause of the disadvantageous treatment. In other words, the burden of proof borne by the applicant can only be expressed as a need for the criterion of discrimination which, in itself, justifies a disadvantage. It is sufficient that the disadvantage or disadvantageous treatment be linked to one of the grounds of discrimination put forward (see, to that effect, judgment of 16 July 2015, CHEZ Razpredelenie Bulgaria, C‑83/14, EU:C:2015:480, paragraph 76).
71      The applicant has thus established, to the requisite legal standard, by the statistics of the rejected applications referred to in paragraphs 42 and 65 above and by applying the criterion of being in the highest salary band I, facts which enabled the presumption of indirect discrimination.
72      In accordance with Article 19(1) of Directive 2006/54, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.
73      In other words, if the Court were to conclude that there is a presumption of discrimination, the effective application of the principle of equal treatment would require that the burden of proof then fall on the respondents concerned, who must prove that there has been no breach of that principle (see, by analogy, judgment of 16 July 2015, CHEZ Razpredelenie Bulgaria, C‑83/14, EU:C:2015:480, paragraph 85).
–       The aim and legitimacy of the CTS programme
74      It is for the ECB, as the author of the allegedly discriminatory programme, to show that that eligibility criteria for the CTS programme and their actual application reflect a legitimate social policy aim, that that aim is unrelated to any discrimination based on sex, and that it could reasonably take the view that the means chosen were suitable for attaining that aim (see, to that effect, judgment of 17 July 2014, Leone, C‑173/13, EU:C:2014:2090, paragraph 74 and the case-law cited).
75      The Court points out that, as the ECB has rightly stated, one of the conditions for derogating from the access condition relating to a minimum of eight years’ service in the same salary band was that the applicant should be in salary band I or a higher salary band. The latter condition thus allowed staff to be admitted to the CTS programme in the interests of the service. That criterion, which promotes the early departure of persons at the highest levels of the hierarchy, is objectively justified by reason, inter alia, of its positive effect on the career opportunities which those persons’ early retirement creates for staff holding lower levels in the hierarchy who aspire to move up the rungs of the organisation.
76      As the ECB has pointed out, in institutions where men currently occupy the highest posts, criteria such as those laid down in the present case may inevitably lead to an advantage for male candidates. However, that fact cannot in itself mean that such a criterion gives rise to indirect discrimination on grounds of sex, since there may be a legitimate and necessary reason to promote an accelerated rotation rate to the highest levels of the hierarchy of an organisation.
77      In that regard, the conditions for access to the CTS programme are accordingly determined by objective facts. It is consistent with the conception of the CTS programme to seek to increase the staff rotation rate and to promote internal mobility opportunities both for men and women and to create an early encouragement of departure for those in the highest salary bands in the hierarchy.
78      Accordingly, the presumed difference in treatment between male and female employees meets a legitimate aim, justified by objective factors unrelated to any discrimination on grounds of sex.
79      The ECB could therefore reasonably consider that the means chosen to achieve the objectives of the CTS programme were such as to achieve that objective.
80      It is therefore appropriate to examine, together with the fifth plea, the question of the proportionality of the measure at issue.
Alleged infringement of the principle of proportionality
81      The applicant claims inter alia, in the context of her fifth plea, that it is for the administration to show that the CTS programme derogation criteria, referred to for the first time in the first contested decision, are proportionate in relation to the objectives defined by Decision ECB/2017/NP19, which seek to promote the optimal operation of the ECB and the increased rotation of permanent staff and to encourage further opportunities for internal mobility.
82      According to the applicant, the ECB did not conduct an impact assessment to determine whether the derogation criteria were relevant and proportionate, even though at least three of the four derogation criteria were met, the Executive Board could waive the requirement of eight years of continuous service, in the same salary band, for an applicant to benefit from the CTS programme.
83      The ECB contests the applicant’s arguments.
84      In that regard, it must be determined whether the derogation criteria can be justified by objective factors. It follows from the case-law of the Court of Justice that this is particularly the case where the means chosen reflect a legitimate social-policy objective of the legislation at issue, are appropriate to achieve that aim and are necessary in order to do so (see judgments of 9 February 1999, Seymour-Smith and Perez,
C‑167/97, EU:C:1999:60, paragraph 69 and the case-law cited; of 20 October 2011, Brachner,
C‑123/10, EU:C:2011:675, paragraph 70 and the case-law cited; and of 17 July 2014, Leone, C‑173/13, EU:C:2014:2090, paragraph 53 and the case-law cited).
85      Moreover, such means can be considered appropriate to achieve the stated aim only if they genuinely reflect a concern to attain that aim and are pursued in a consistent and systematic manner (judgments of 10 March 2009, Hartlauer, C‑169/07, EU:C:2009:141, paragraph 55; of 21 July 2011, Fuchs and Köhler, C‑159/10 and C‑160/10, EU:C:2011:508, paragraph 85; and of 20 October 2011, Brachner, C‑123/10, EU:C:2011:675, paragraph 71; see, also, judgment of 17 July 2014, Leone, C‑173/13, EU:C:2014:2090, paragraph 54 and the case-law cited; see, also, to that effect, judgment of 18 November 2010, Georgiev, C‑250/09 and C‑268/09, EU:C:2010:699, paragraph 56).
86      It is therefore necessary to identify the subject matter and objective of the CTS programme in order to determine whether, inter alia, the derogation criteria applied by the ECB were proportionate to that objective.
87      In that regard, it should be borne in mind that the aim of the CTS programme is to facilitate the voluntary career transition outside the ECB, in order to promote the operational excellence of the ECB, to increase the staff rotation rate and to create greater opportunities for internal mobility. The objective of establishing the CTS programme was to deal preventatively with a number of risks likely to undermine the proper functioning of the ECB in the near future, by creating early vacancies of posts so as to enable new persons to be recruited and to increase the opportunities for internal promotion for existing staff. Since that measure corresponded to a desire to maintain or improve the quality of the services provided as part of the performance of the ECB’s tasks, it was linked to the interests of the service.
88      Next, as regards the question whether the derogation criteria from the CTS programme consisting of the fact of having a minimum age of 50 years as at 31 October 2017 is directly discriminatory on grounds of age and does not result in discrimination on grounds of sex, the Court finds that, even if that were the case, such a finding would not, in itself, result in the annulment of the first and second contested decisions, since the statement of reasons for the first contested decision was not based on the fact that the applicant did not meet the criterion relating to the fact of having a minimum age of 50 years as at 31 October 2017.
89      As regards the derogation criterion relating to the existence of 15 years’ service under a convertible fixed-term employment contract or an employment contract of indefinite duration, it appears that it corresponds to longer and more advanced careers and that it will have the effect of encouraging staff members with a significant length of service to apply for the CTS programme, thus having the consequence of releasing their posts in favour of other, younger staff members less advanced in their careers. The derogation criterion of 15 years of service thus fulfils the objective of the CTS programme, namely, of increasing the opportunities for internal promotion.
90      In addition, the derogation criterion relating to six steps will be intended to encourage staff members with a certain length of service, who have already progressed in their career, to apply for the CTS programme. That derogation criterion, in the same way as the derogation criterion of 15 years of service, will have the effect of releasing posts occupied by members of staff who have a high level in the hierarchy, for the benefit of other members of staff who are less advanced in their careers.
91      Finally, the derogation criterion for salary band I appears to be necessary in the light of the objective pursued by the CTS programme, in so far as the release of posts at that level gives staff at lower salary levels the possibility of new promotions within the institution.
92      As the ECB rightly points out, the higher the post released within the organisation, the greater the benefits from the point of view of creating new opportunities for promotion at different levels. In other words, as the ECB explained at the hearing, by freeing high posts, there is a ‘percolation effect’ with the freeing of senior posts, thereby creating opportunities for applications from internal candidates to occupy those posts.
93      Furthermore, even if, as the applicant rightly observed at the hearing, at no time during the proceedings before the Court did the ECB argue that the objective of the CTS programme was also to ensure a fairer balance between the sexes, the fact remains that equality and promotion of equality between women and men are central objectives of the Union which have a fundamental impact on all the policies and activities of the Union. Their inclusion in transversal provisions, such as Article 2 TEU, the second subparagraph of Article 3(3) TEU and Article 8 TFEU, demonstrates this.
94      In that regard, the prohibition of all discrimination on grounds of sex is only one aspect of the Union’s equality policy. As regards the field of work and employment, Article 119 of the EEC Treaty already included such a prohibition of discrimination addressed to the Member States as regards remuneration, a prohibition now laid down in Article 157 TFEU. The Treaty of Amsterdam added a fourth paragraph to Article 157 TFEU, which also empowers the Member States to adopt ‘positive discrimination’ measures.
95      Apart from the outright prohibition of discrimination, on the one hand, and enabling them to provide for certain benefits, on the other, a comprehensive guarantee of equal opportunities and equal treatment for women and men also requires the inclusion of considerations relating to sex in all concepts and measures of the Union.
96      The provisions of the Charter, which, in accordance with Article 51(1) thereof, are addressed to the institutions, bodies and agencies of the Union, also show that a comprehensive guarantee of equality of the sexes includes that requirement.
97      In those circumstances, it appears that the criteria derogating from the CTS programme are proportionate to the objectives of that programme.
98      Consequently, the fourth and fifth pleas, which overlap in part on the issue of proportionality, must be rejected as unfounded.
The alleged infringement of the principles of legal certainty, transparency and non-discrimination
99      The ECB contends that the first ground of appeal is in part inadmissible.
100    In the circumstances of the present case, the Court considers that, in the interests of procedural economy and in the light of the case-law cited in paragraph 38 above, it is appropriate to begin by examining the merits of the first plea, without first ruling on its admissibility.
101    In support of its first plea, the applicant claims that the first contested decision was adopted in breach of the principles of transparency, non-discrimination and legal certainty. Since those arguments are closely connected, they will be examined together.
102    The applicant takes the view that the ECB infringed those principles in so far as, inter alia, the first contested decision refers to criteria for access to the CTS programme which are not referred to in Decision ECB/2017/NP19, with the result that she was unaware of the criteria which were to be applied to her at the time of her application and that she received contradictory information throughout the selection process.
103    According to the applicant, the first contested decision infringes the principle of transparency and openness in that it mentions, for the first time, several derogation criteria which were relevant for setting aside the condition for access to the programme laid down in Article 3.1 of Annex V but which were not referred to in Article 3.2 of that annex. That article is, despite the third recital in the preamble to Decision ECB/2017/NP19, a ‘rather vague provision’, which contains a non-exhaustive list of considerations defining ‘the interests of the service’.
104    Moreover, the applicant did not have access to the General Methodology when she applied for the CTS programme on 3 July 2017 and when the Executive Board adopted the first contested decision on 14 December 2017. She therefore takes the view that she was unaware of the criteria which were to be applied to her when she applied for the CTS programme.
105    The ECB is of the view that there is no general principle of transparency to which it is subject, nor even any general principle of law requiring it to define in advance and in writing the concept of ‘interests of the service’ under which the criteria for derogation from the general condition of access laid down in Article 3.1 of Annex V have been defined.
106    In any event, the procedure leading to the adoption of the first contested decision is transparent, since it set out the reasons why the Executive Board had not considered that the derogation criteria provided for in Article 3.2 of Decision ECB/2017/NP19 were applicable to the specific case of the applicant.
107    At the hearing, the ECB claimed that it was under no obligation to publish the General Methodology at some point in time, or even to publish it as such, in so far as it determines the interests of the service, which is a prerogative of the institutions, and that the CTS programme is an optional programme of severance pay. In any event, the ECB acknowledged that the General Methodology had been amended on several occasions and that the final version had been adopted on 14 December 2017, the date on which the first contested decision was adopted. However, the General Methodology taken into consideration when examining the applicant’s situation is an earlier version of that text, drawn up by the Executive Board on 7 November 2017 and sent to the Area Head, and which therefore already existed one month before the date on which the first contested decision was adopted.
108    The Court points out that the employment relationship between the ECB and its staff is defined by the Conditions of Employment, adopted by the Governing Council, on a proposal from the Executive Board, on the basis of Article 36.1 of the ESCB Statute. They provide, in Article 9(a), that ‘employment relations between the ECB and its members of staff shall be governed by employment contracts issued in conjunction with these Conditions of Employment’. Article 10(a) of those conditions provides that ‘employment contracts between the ECB and its members of staff shall take the form of letters of appointment which shall be countersigned by members of staff’.
109    As is apparent from the case-law, the employment relationship between the ECB and its staff is contractual rather than governed by the Staff Regulations (judgment of 22 October 2002, Pflugradt v ECB, T‑178/00 and T‑341/00, EU:T:2002:253, paragraph 49).
110    In that regard, it should be noted that Article 36.1 of the ESCB Statute provides that ‘the Governing Council, on a proposal from the Executive Board, shall lay down the conditions of employment of the staff of the ECB’.
111    Those Conditions of Employment, which are defined by the Conditions of Employment and the Staff Rules in accordance with Article 21 of the Rules of Procedure (see paragraph 5 above), are not the same as the rules applying to officials and the rules applying to other servants of the European Union (judgment of 22 October 2002, Pflugradt v ECB, T‑178/00 and T‑341/00, EU:T:2002:253, paragraph 48).
112    At the first stage of the CTS programme selection, selection is based on the conditions set out in Article 3.1 of Annex V and on the derogation in Article 3.2 of that annex.
113    As such, the criteria for derogation from the condition of access set out in Article 3.1 of Annex V set out in paragraph 10 above appear to be sufficiently foreseeable in the light of the objectives of the CTS programme and cannot, on that basis, give rise to legal uncertainty for the applicants to the programme.
114    Moreover, as the ECB points out in its defence, the CTS programme does not infringe any existing right or any established legal situation. It gives members of staff the opportunity to participate in a programme of voluntary termination of the employment relationship.
115    In the present case, it is apparent from the analysis of the CTS programme and Decision ECB/2017/NP19 that that programme is based on a policy adopted on the basis of voluntary cooperation.
116    Moreover, it should be noted that recital 3 of Decision ECB/2017/NP19 contains relatively precise indications as to the definition of the ‘interests of the service’ drawn up by the Executive Board, since it sets out a list, which is not exhaustive but sufficiently foreseeable, and thus supplements the reasoning of the contested decision with objective factors such as the earlier career progression of a member of staff in the light of his or her seniority within the ECB, or the level of the staff member’s professional contribution compared to holders of similar posts in the same sector.
117    It follows that the applicant’s argument, based on the fact that recital 3 of Decision ECB/2017/NP19 contains the phrase ‘considerations such as’ and that, on that basis, an exhaustive description of the ‘interests of the service’ is not established, cannot succeed, since it is irrelevant that the Executive Board, expressly responsible for defining the interests of the service, may not have used certain criteria or could have used others.
118    Therefore, even if the applicant could have been aware of only part of the concept of ‘interests of the service’ before submitting her application, it must be held that that concept and the relevant criteria in that respect were not exhaustive and were circumstantial.
119    Moreover, it should be borne in mind that the transparency and a certain degree of openness of the procedure for selecting candidates for the CTS programme were ensured by the statement of reasons for the first contested decision, which, in the present case, clearly sets out to the applicant the reasons why the Executive Board did not derogate from the eligibility condition referred to in Article 3.1 of Decision ECB/2017/NP19.
120    Furthermore, the applicant’s argument relating to the contradictory information allegedly provided to her by ECB staff throughout the selection procedure must be rejected as unfounded.
121    In that regard, the human resources representative informed the applicant that it was impossible to guarantee her participation in the CTS programme, since the Executive Board selected the members of staff concerned who would be proposed to participate in that programme. It is also apparent from the application form signed by the applicant that the mere submission of her application did not entitle her to benefit from the CTS programme.
122    It follows from all those considerations that the argument claiming infringement of the principles of transparency and openness by the ECB must be rejected.
123    Lastly, the applicant claims that, under the principle of non-discrimination, the ECB was required to inform participants in advance of the conditions and criteria used in the selection procedure, in particular in so far as there was, in that procedure, a scheme which derogated from the ordinary programme. However, the Executive Board adopted the General Methodology after the application period for the CTS programme. Moreover, according to the applicant, although the Area Head assured her that he would support her application, it is clear from the first and second contested decisions that such support was not provided.
124    The applicant submits that selection for the programme was discriminatory and unfair. She asserts that the CTS selection rules and, in particular, the criteria relating to the ‘interests of the service’, changed between the date of her application (3 July 2017) and the date on which the first contested decision and the General Methodology were adopted (14 December 2017), so as to alter the way in which the situation of members of staff on leave was addressed. Furthermore, it appears that the opinion of the Area Head was not taken into account even though a reference to that opinion was clearly mentioned in the publications on the Intranet of 12 June and 6 December 2017.
125    The ECB is of the view that the applicant’s case is based on an erroneous understanding of the principle of non-discrimination.
126    In that regard, it should be noted that, even if the applicant’s assertions were true, none of the staff members who submitted their application for the CTS programme, including the applicant, had access to the General Methodology until the closing date of the application period of that programme. Accordingly, the applicant and all the candidates were in a comparable situation and were not treated differently.
127    Therefore, the ECB’s conduct towards the applicant was not discriminatory.
128    It follows that the first plea must be rejected in its entirety as unfounded.
The alleged breach of the duty of care
129    By her third plea, the applicant submits that the Executive Board should have taken into account her personal interests, of which it was aware, when taking a final decision concerning her participation in the CTS programme. She refutes the ECB’s argument that the criterion for admission to the CTS programme was solely the interests of the service.
130    She states that, before making her application, she had discussed the personal reasons why she particularly needed to benefit from the CTS programme with her Area Head and Chief Executive Officer.
131    The ECB considers that the applicant’s arguments are manifestly unfounded.
132    By analogy with the situation of officials and staff of other institutions, the duty of care reflects the balance of reciprocal rights and obligations established by the Conditions of Employment and the rules applicable to staff in the relationship between the official authority and the civil servants, which implies in particular that, when deciding on the situation of an official, the authority takes into consideration all the factors which may affect its decision and that, in so doing, it should take into account not only the interests of the service, but also those of the individual concerned (see, to that effect and by analogy, judgments of 28 May 1980, Kuhner v Commission, 33/79 and 75/79, EU:C:1980:139, paragraph 22; of 29 June 1994, Klinke v Court of Justice, C‑298/93 P, EU:C:1994:273, paragraph 38; and of 12 December 2000, Dejaiffe v OHIM, T‑223/99, EU:T:2000:292, paragraph 53).
133    That last obligation is also imposed on the administration by the principle of good administration enshrined in Article 41 of the Charter (see, to that effect, judgment of 13 December 2017, Arango Jaramillo and Others v EIB, T‑482/16 RENV, EU:T:2017:901, paragraph 131 and the case-law cited).
134    However, the protection of the rights and interests of permanent members of staff must always be limited by compliance with the rules in force (see judgment of 5 December 2006, Angelidis v Parliament, T‑416/03, EU:T:2006:375, paragraph 117 and the case-law cited).
135    In the present case, the applicant’s interest is expressed in the possibility that she could retire early by applying for the CTS programme, which is confirmed by the discussions which the applicant had with her Area Head and her Chief Executive Officer in December 2016 and February 2017. The applicant’s interest was thus taken into account.
136    In any event, first, those discussions took place before the applicant applied for the CTS programme and, second, those discussions were not conducted on the basis of Decision ECB/2017/NP19, which entered into force on 1 July 2017.
137    Finally, it must be borne in mind that the duty of care implies that the interests of the person concerned must be taken into consideration. A programme such as the CTS programme operates exclusively in the interests of the service and derogations under Article 3.2 must themselves be based on the interests of the service.
138    The applicant’s plea alleging a possible breach by the ECB of the duty of care cannot therefore succeed and must be rejected.
The claim for compensation
139    The applicant requests that the ECB be ordered to pay her a sum estimated ex aequo et bono at EUR 20 000.
140    The ECB contends that the claim for compensation should be dismissed since, in its view, the applications for annulment, which are closely associated with that claim, must also be dismissed.
141    In that regard, it should be recalled that, in civil service issues, a claim for compensation for material and non-material damage must be rejected in so far as it is closely linked to the application for annulment, which itself was dismissed as unfounded (see judgment of 19 December 2019, HK v Commission, C‑460/18 P, EU:C:2019:1119, paragraph 93 and the case-law cited).
142    In the present case, it should be noted that the claim for compensation is closely linked to the applications for annulment.
143    Since the applications for annulment have been rejected, the claim for compensation must also be rejected and, consequently, the action must be dismissed in its entirety.
Costs
144    Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. According to Article 135(1) of those rules, if equity so requires, the Court may decide that an unsuccessful party is to pay only a proportion of the costs of the other party in addition to bearing his or her own costs, or even that he or she is not to be ordered to pay any costs.
145    In its defence, the ECB contends that, since the applicant did not meet the criteria for access to the CTS programme, she had no valid reason to challenge the first contested decision by a special appeal. Furthermore, given the ECB’s very detailed response to its special appeal, it was incumbent, in its view, on the applicant to leave the situation unaltered, instead of being a party to legal proceedings.
146    In the present case, in view of the fact that the Court has found that the eligibility criteria for the CTS programme involved prima facie discrimination on grounds of sex, each party must be ordered to bear its own costs.
On those grounds,
THE GENERAL COURT (First Chamber)
hereby:
1.      Dismisses the action;
2.      Orders each party to bear its own costs.
Nihoul
Svenningsen
Öberg
Delivered in open court in Luxembourg on 23 September 2020.
E. Coulon
S. Papasavvas
Registrar
President
*      Language of the case: English.