62005FJ0015_EN
Parties
Grounds
Operative part
Parties
In Case F‑15/05,
ACTION under Article 36.2 of the Protocol on the Statute of the European System of Central Banks and of the European Central Bank, annexed to the EC Treaty,
Carlos Andres,
a member of staff of the European Central Bank, residing in Frankfurt am Main (Germany), and the eight other applicants whose names are listed in the annex, represented by G. Vandersanden and L. Levi, lawyers,
applicants,
v
European Central Bank (ECB),
represented by C. Zilioli and K. Sugar, acting as Agents, and by B. Wägenbaur, lawyer,
defendant,
THE TRIBUNAL (Full Court),
composed of P. Mahoney, President, H. Kreppel (Rapporteur) and S. Van Raepenbusch, Presidents of Chambers, I. Boruta, H. Kanninen, H. Tagaras and S. Gervasoni, Judges,
Registrar: W. Hakenberg,
having regard to the written procedure and further to the hearing on 22 May 2007,
gives the following
Judgment
Grounds
1. By application received by fax at the Registry of the Court of First Instance of the European Communities on 21 March 2005 (the original being lodged on 23 March 2005), the applicants brought the present action seeking, first, the annulment of their salary statements for the month of July 2004, in so far as they contain a salary increase fixed in accordance with an allegedly unlawful method of annual salary adjustment and that increase does not have retroactive effect with regard to the years 2001, 2002 and 2003, and, secondly, the award of damages.
Legal context
2. Article 36 of the Protocol on the Statute of the European System of Central Banks and of the European Central Bank (ECB), annexed to the EC Treaty (‘the ESCB Statute’), contains the following provisions:
‘Staff
36.1. The Governing Council, on a proposal from the Executive Board, shall lay down the conditions of employment of the staff of the ECB.
36.2. The Court of Justice [of the European Communities] shall have jurisdiction in any dispute between the ECB and its servants within the limits and under the conditions laid down in the conditions of employment.’
3. On 9 June 1998, pursuant to Article 36.1 of the ESCB Statute, the Governing Council of the ECB adopted the Conditions of Employment for Staff of the ECB (Decision of the ECB of 9 June 1998 on the adoption of the Conditions of Employment for Staff of the ECB as amended on 31 March 1999, OJ 1999 L 125, p. 32, and on 5 July 2001, OJ 2001 L 201, p. 25; ‘the Conditions of Employment’).
4. Article 42 of the Conditions of Employment, which implements Article 36.2 of the ESCB Statute, specifies:
‘After all available internal procedures have been exhausted, the Court of Justice … shall have jurisdiction in any dispute between the ECB and a member or a former member of its staff to whom these Conditions of Employment apply.
Such jurisdiction shall be restricted to the legality of the measure or decision, unless the dispute is of a financial nature, in which case the Court of Justice shall have unlimited jurisdiction.’
5. With regard to employment relations, Article 9 of the Conditions of Employment provides inter alia:
‘(a) Employment relations between the ECB and its members of staff shall be governed by employment contracts issued in conjunction with these Conditions of Employment. The [ECB] Staff Rules adopted by the Executive Board shall further specify the application of these Conditions of Employment.
...
(c) No specific national law governs these Conditions of Employment. The ECB shall apply (i) the general principles of law common to the Member States, (ii) the general principles of European Community (EC) law, and (iii) the rules contained in the EC regulations and directives concerning social policy which are addressed to Member States. Whenever necessary, these legal instruments will be implemented by the ECB. EC recommendations in the area of social policy will be given due consideration. In interpreting the rights and obligations under the present Conditions of Employment, due regard shall be shown for the authoritative principles of the regulations, rules and case-law which apply to the staff of the EC institutions.’
6. As regards salary adjustments, Article 13 of the Conditions of Employment provides:
‘The Governing Council, on a proposal from the Executive Board, shall adopt general salary adjustments, which shall take effect on 1 July of each year.’
7. Concerning staff representation, Articles 45 and 46 of the Conditions of Employment, contained in Part 9 headed ‘Staff Representation’, read as follows:
‘45. A Staff Committee whose members are elected by secret ballot shall represent the general interests of all members of staff in relation to contracts of employment; staff regulations and remuneration; employment, working, health and safety conditions at the ECB; social security cover; and pension schemes.
46.
The Staff Committee shall be consulted prior to changes in these Conditions of Employment, the Staff Rules and related matters as defined under [Article] 45 above.’
8. The provisions of Article 46 of the Conditions of Employment are rendered more specific by the European Central Bank Staff Rules, which lay down inter alia the details of the consultation procedure between the ECB and the Staff Committee (Article 9.2).
9. On 17 June 2003, a Memorandum of Understanding on Relations between the Executive Board and the Staff Committee of the ECB (‘the Memorandum of Understanding’) was signed, defining more specifically the context and the procedures to be followed.
10. Its preamble provides that ‘efforts shall be made to provide all relevant information and to initiate a dialogue at the earliest possible time in so far as there are no overriding reasons for not doing so’.
11. Article 6 of the Memorandum of Understanding sets forth the requirements for a consultation request:
‘When starting a consultation procedure, the President or his/her representative shall submit to the Staff Committee a written consultation request together with complete information, i.e. information, which allows the Staff Committee to acquaint with [ sic ] and to examine the subject-matter of the consultation, in so far as there are no overriding reasons for not doing so. …’
12. Article 15 of the Memorandum of Understanding provides for a simplified consultation procedure:
‘For reasons, which must be justified by one or the other party to the dialogue, a procedure may be agreed upon to reduce the number of exchanges of views on a specific issue. In such cases an ad hoc schedule will be defined and agreed upon by the parties.’
13. Pursuant to Article 13 of the Conditions of Employment, the Executive Board of the ECB developed a method for implementing the general salary adjustments (GSA) (‘the method of calculation’). In principle, the method is based on a specific assessment of the salary adjustments in the organisations which are the ECB’s principal sources of staff recruitment, such as the national central banks (‘the comparator organisations’), in order to ensure that the salaries of the staff of the ECB remain in line with their level of remuneration. With regard to the years 1999 to 2001, the method of calculation was adopted by the Governing Council of the ECB on 20 June 1999 (‘GSA 1999-2001’). That version was subsequently amended by the Governing Council for the years 2002 to 2004 (‘GSA 2002-2004’).
14. According to GSA 1999-2001, the salary adjustment for the employees of each comparator organisation (as a percentage) is related to the number of its employees, in accordance with the following principles:
‘– [t]he annual general salary adjustment [will] be based on the average development of nominal salaries in the fifteen [national central banks] plus the [Bank for International Settlements (BIS)], as the “central bankˮ of the central banks;
– [t]he annual adjustments in the comparator organisations for the current calendar year [will] be taken [into account];
– [t]he nominal salary developments will be weighted[; t]he weighting will be based on the number of employees in each of the comparator institutions;
– …’
15. Consequently, no differentiation was made by GSA 1999-2001 between the different comparator organisations and no possibility of correction was provided for.
16. By contrast, GSA 2002-2004, while following the same principles, take into account two groupings of comparator organisations, each grouping contributing 50% to the calculation of the annual adjustment:
‘– [t]he annual general salary adjustment will be based on the average development of nominal salaries in the following institutions:
– 1. [t]he fifteen [national central banks] and the BIS;
– 2. [t]he European Community institutions and bodies (i.e. the … Commission [of the European Communities] and its agencies, the Council of the European Union, the [European] Parliament, the Court of Justice, the Court of Auditors [of the European Communities], the [European] Economic and Social Committee, the Committee of the Regions [of the European Union];
[t]he “Coordinated Organisations” (i.e. [the North Atlantic Treaty Organisation (NATO)], [the Organisation for Economic Cooperation and Development (OECD)], European Space Agency, European Centre for Medium-Range Weather Forecast[s], Council of Europe, Western European Union);
[t]he European Investment Bank.
– [t]he nominal salary developments will be weighted according to the number of employees in each of the comparator institutions;
– each of the comparator groupings (i.e. 1 and 2 above) will contribute 50% each to the calculation’.
17. In addition, GSA 2002-2004 provide for a system of correction of the adjustments in the light of data which become available subsequently:
‘The annual adjustments in the comparator organisations for the current calendar year (where available) will be taken [into account]. Where adjustments are not available for the current year, the previous year’s data will be used and, subject to the data being available, the difference with the actual data will be corrected in the following year.’
18. Decision ECB/2004/3 of 4 March 2004 on public access to European Central Bank documents (OJ 2004 L 80, p. 42), Article 2(1) of which provides that any citizen of the Union ‘has a right of access to ECB documents, subject to the conditions and limits defined in this Decision’, provides, in Article 4(1), that the ECB is to refuse access to a document where disclosure would undermine the protection of the public interest, the privacy and the integrity of the individual and the confidentiality of information that is protected as such under Community law. Concerning the application of such an exception, Article 4(4) of that decision states:
‘As regards third-party documents, the ECB shall consult the third party concerned with a view to assessing whether an exception in this Article is applicable, unless it is clear that the document shall or shall not be disclosed.’
Facts
19. The applicants concluded contracts of employment with the ECB which provide inter alia that the Conditions of Employment and amendments thereto are an integral part of the contract.
20. By judgment of the Court of First Instance of 20 November 2003 in Case T‑63/02 Cerafogli and Poloni v ECB
[2003] ECR II‑4929, the decisions contained in the salary statements addressed to the applicants, members of staff of the ECB, on 13 July 2001, for the month of July 2001, were annulled, in so far as the ECB had not consulted the Staff Committee prior to the salary adjustment for 2001.
21. On 16 December 2003, the ECB addressed to all members of staff a memorandum announcing that, following the judgment of the Court of First Instance, it would undertake a consultation with the Staff Committee regarding the implementation of the method of calculation in the years 2001, 2002 and 2003. In particular, that memorandum stated:
‘Administration will now undertake a consultation of the Staff Committee as regards the implementation of the methodology in the years 2001, 2002 and 2003. However, in this respect, there is no reason from the Court [of First Instance] judgment to submit in the consultation that the calculations for any one of these years should be changed.’
22. By memorandum of 9 January 2004, the ECB opened the consultation procedure by forwarding to the Staff Committee some lists of data provided by the comparator organisations for 2001, 2002 and 2003.
23. The Staff Committee replied on 25 March 2004, raising various questions concerning the data forwarded by the ECB and requesting the retroactive application of the result of the final calculation of the salary adjustment for employees of the ECB for the years 2001, 2002 and 2003, on the basis inter alia of the differences found by the Staff Committee between the data provided on 9 January 2004 by the ECB and the data of the same kind obtained by the Staff Committee from the staff committees of the comparator organisations. The Staff Committee wanted an upward salary adjustment taking account of all those factors.
24. A series of ‘technical’ and ‘ad hoc’ meetings between the Staff Committee and the ECB representatives was then held. In particular, a technical meeting took place on 30 March 2004, at which the Staff Committee representatives (including the applicant Ms Cerafogli) produced copies of all the documents which the Staff Committee had received from the staff committees of the comparator organisations for the previous years. The salary adjustment for the years 2001 to 2003 was also the subject of a technical meeting held on 11 May 2004. An ECB representative, Mr Kelly, gave figures relating to a number of national central banks and explained that it would be necessary to discuss their distribution over each of the years 2001, 2002 and 2003, making it clear that, if the figures showed a difference, an adjustment would be likely. In reply to the question from the Staff Committee representatives (including the applicant Mr Seigneur) regarding a retroactive adjustment, the ECB representative expressed a preference for the adjustment to take effect in 2004. Further ad hoc meetings concerning the salary adjustment were held on 1 June 2004 in the presence of the ECB representative, Mr Kelly, the Staff Committee spokesperson, Mr van de Velde, and of one of the deputy spokespersons of that committee, Mr van der Ark, and on 9 June 2004 in the presence of two ECB representatives, Mr van Baak and Mr Kelly, and the two Staff Committee members present at the meeting of 1 June 2004. The nature of, participation in and content of the meetings of 1 and 9 June 2004 and of other meetings remain, in several respects, controversial.
25. By memorandum of 3 June 2004, the Staff Committee voiced its expectation that the likely outcome of the salary adjustment, following the consultation pro cedure for the years 2001 to 2003, would take effect at the same time as the adjustment to be made in respect of 2004 (that is, from 1 July 2004, as provided for by Article 13 of the Conditions of Employment).
26. So far as concerns a meeting held on 14 June 2004, different accounts of its preparation and course are also given by the parties. The applicants maintain that the Staff Committee received certain important statistical data only during the meeting, whereas at no time during the consultation procedure started by the memorandum of 9 January 2004 did the members of the Staff Committee have access to all the documents by which the comparator organisations communicated the salary increase percentages and the numbers of employees (‘the source data’). The ECB, on the other hand, claims to have forwarded the statistical data in question on Friday 11 June 2004 and to have shown the source data to the Staff Committee spokesperson, Mr van de Velde, and one of his deputies, Mr van der Ark, on a date which it was not able to specify. The assertion that it was the Staff Committee which proposed to the ECB that its spokesperson and one of its deputy spokespersons should be given such access to the source data is confirmed by an e‑mail of 1 June 2004 from the deputy spokesperson, Mr van der Ark. In addition, the fact that there was such access is confirmed by a written statement dated 13 June 2005 and signed, inter alios, by the two Staff Committee representatives concerned.
27. The Staff Committee, represented by its spokesperson and one of its deputy spokespersons, sent to the Director-General of the Directorate-General (DG) for Administration of the
ECB a letter dated 14 June 2004 in which it wrote that:
‘The Staff Committee recently received the recalculated figures from the Directorate [for] Human Resources on the GSA 2001-2003.
We had hoped to conclude the consultation on GSA 2001-2003 in time for the GSA calculation for 2004. Having provided our findings on 25 March we have only recently received a table with the recalculated figures from [the] Directorate [for] Human Resources. We have met with [the] Directorate [for] Human Resources staff concerned to understand and clarify these figures. A small number of differences, which cannot yet be explained, remain to be agreed. Specifically Belgium (2001), [Deutsche] Bundesbank (2001 and 2002) and the … Commission (2002). New data has become available for Ireland and the EIB since our letter of 25 March 2004. Further information regarding the Banca d’Italia, as provided by our counterparts, contains elements not related to the GSA.
It is not possible to resolve the differences in advance of the proposed timetable for the Executive Board to confirm the award for 2004. However, [the] Directorate [for] Human Resources has already confirmed that the revised data provided to them show a cumulative effect of 0.9% for 2001-2003, of which 0.6% is already accounted for in the calculation of 2004.
Since the remaining difference, if confirmed, will make a small increase in the end result, we suggest that the already agreed 0.3% difference (0.9% – 0.6%) is added to the result of the 2004 GSA, and that any remaining difference is made up for in 2005 when the final figures are agreed.’
28. On 15 June 2004, that is, the following day, the Executive Board of the ECB approved the proposal of the President of the ECB for a 3.5% increase made up of 3.2% in respect of 2004 and a one-off supplementary adjustment of 0.3% in respect of the period from 2001 to 2003, and decided to submit that proposal to the Governing Council for adoption. The rate of 3.2% includes 0.6% by virtue of the data which were lacking in 2003 but became available in 2004.
29. On that same date, 15 June 2004, the staff of the ECB elected a new Staff Committee.
30. In a letter of 25 June 2004, addressed to the Vice-President of the ECB, the new Staff Committee expressed the view that the consultation procedure relating to the years 2001 to 2003 had not been concluded by the letter of 14 June 2004. It therefore requested a reply to the previous Staff Committee’s letter of 25 March 2004, so as to ensure that a consultation procedure complying with the Memorandum of Understanding, including a second phase of consultation, was followed.
31. At its meeting on 1 July 2004, the Governing Council adopted the Executive Board’s proposal of 15 June 2004.
32. By memorandum of 1 July 2004, the Director of the Directorate for Human Resources of the Administration DG informed all members of staff that a decision to increase salaries by 3.5% with effect from 1 July 2004 had been taken by the Governing Council.
33. By his letter of 7 July 2004, the Director of the Directorate for Human Resources of the Administration DG replied as follows to the new Staff Committee on the subject of the salary adjustment for the years 2001 to 2003:
– he referred to the letter of 9 January 2004 (opening the consultation procedure) and to those from the Staff Committee of 14 and 25 June 2004;
– he noted that ‘[t]he information … provided … ha[d] been checked, and [bore] out that an underpayment amounting to 0.3% ha[d] arisen over the period due to flawed data being presented by some comparators[; a]s a consequence, the Governing Council ha[d] agreed to apply a one-off adjustment of 0.3% to the 2004 GSA outcome, increasing the final result to 3.5% with effect from 1 July 2004’;
– he confirmed that the consultation procedure would continue (‘regards this exchange as ongoing’) but with effect from the next adjustment cycle (‘[a]lthough it is accepted that any remaining differences will be made up for in the next GSA, I suggest a deadline for your further comments of 20 working days from receipt of this letter, in order to maintain the momentum on this issue’).
34. The salary statements which included the 0.3% increase for the years 2001 to 2003 as well as that of 3.2% for 2004 were sent to the applicants in mid-July 2004.
35. On 4 August 2004, the Staff Committee replied to the letter of 7 July 2004 from the ECB. Basing its position in part on data other than those communicated by the previous Staff Committee, the new Staff Committee stated that it was unable to understand how the figure of 0.3% had been obtained. The discrepancies thus found by the new Staff Committee were, in its view, probably due to ‘the incorrect interpretation of data … by the [previous] Staff Committee and the Administration’.
36. In reply to the Staff Committee’s memorandum of 4 August 2004, the Director of the Directorate for Human Resources of the Administration DG provided, by memorandum of 23 September 2004, information and clarifications on the three points which, according to the Staff Committee’s letter of 14 June 2004, remained to be clarified so far as concerned the salary adjustments for the years 2001 to 2003, in relation to the data from the Banque nationale de Belgique, the Deutsche Bundesbank and the Commission. He regarded the consultation procedure as having ended.
37. By memorandum of 6 October 2004, addressed to the Director of the Directorate for Human Resources of the Administration DG, the Staff Committee requested inter alia that he withdraw his memorandum of 23 September 2004 and send a new letter which would answer the questions raised in its letters of 25 March, 25 June and 4 August 2004, which had not received adequate replies. Otherwise, the consultation on the general salary adjustment exercise 2001 to 2003 would be considered by the Staff Committee not to have been carried out.
38. The ECB replied on 23 February 2005 to the Staff Committee’s memorandum of 6 October 2004. By memorandum of 28 February 2005, the Staff Committee responded to the ECB’s letter 23 February 2005. It was primarily by those two letters and the respective proposals which they contained that the ECB and the Staff Committee attempted to put an end to their dispute by means of an amicable settlement. The principle underlying the proposed amicable settlement was that the failure to take into account the differences pointed out by the Staff Committee in relation to the calculation of the salary adjustment for the years 2001 to 2003 should be made up for by granting additional days of leave. Not having reached an agreement with the Staff Committee, the ECB reiterated, in its memorandum of 7 March 2005, the view that the consultation had ended.
39. A number of members of staff of the ECB, including the applicants, had submitted, between 10 September and 14 September 2004, requests for administrative review of their salary statements for the month of July 2004. In those letters, which were based on a common model, the applicants requested, inter alia:
– that their salary statements for the month of July 2004 be revised so as to include, retroactively, in the amount paid in July 2004, the result of the revision of the salary adjustment for the years 2001 to 2003;
– that their salary statements for July 2004 be revised so as to include the total amount of the balance, as calculated by the Staff Committee, resulting from the revision of the implementation of the salary adjustment exercise for the years 2001, 2002 and 2003 (that is, 2.67%), the payments to take place on a retroactive basis;
– should the ECB reject the request made in that regard by the Staff Committee, communication of the source data communicated to the ECB by the comparator organisations, so as to prove that the calculations made by the ECB were consistent with the source data provided.
40. On 9 December 2004, the ECB replied to the requests for review. Its replies were also based on a common model, with the exception of that given to Mr Poloni, which is different in view of the alleged late submission of his request for review.
41. The applicants submitted grievances under the internal grievance procedure by letters dated 9, 10 and 13 December 2004.
42. The internal grievances were rejected by letters of 6 January 2005 served on the applicants on 10 January 2005.
Procedure and forms of order sought by the parties
43. The present action was lodged at the Registry of the Court of First Instance under number T‑131/05.
44. By order of 15 December 2005, the Court of First Instance, pursuant to Article 3(3) of Council Decision 2004/752/EC, Euratom of 2 November 2004 establishing the European Union Civil Service Tribunal (OJ 2004 L 333, p. 7), referred the present case to the Tribunal. The action was lodged at the Tribunal Registry under number F‑15/05.
45. After consulting the parties, the Tribunal decided to refer the case to the full court.
46. The applicants claim that the Tribunal should:
– declare the present action admissible and well founded; and, consequently,
– annul their salary slips for the month of July 2004;
– in so far as necessary, annul the decisions, dated 9 December 2004 and 6 January 2005 respectively, rejecting the requests for administrative review and internal grievances submitted by them;
– order the ECB to produce its ‘administrative file’;
– order the ECB to award damages to compensate for the damage caused to them, consisting, first, of a payment of a sum of EUR 5 000 per applicant on account of a loss of purchasing power since 1 July 2001, and, secondly, of arrears of remuneration corresponding to an increase in their salaries of 1.86% for the period from 1 July 2001 to 30 June 2002, 0.92% for the period from 1 July 2002 to 30 June 2003 and 2.09% for the period from 1 July 2003 to 30 June 2004, together with interest from their respective due dates until the date of actual payment, calculated at a rate two points above the rate set by the ECB for its main refinancing operations as applicable during the period in question;
– order the ECB to pay the entirety of the costs.
47. The ECB contends that the Tribunal should:
– declare the action inadmissible so far as concerns Mr Poloni;
– dismiss the action as unfounded;
– make an appropriate order as to costs.
48. By way of measures of organisation of procedure, in accordance with Article 64 of the Rules of Procedure of the Court of First Instance, applicable mutatis mutandis
to the Tribunal pursuant to Article 3(4) of Decision 2004/752 until the entry into force of its Rules of Procedure, the Tribunal put questions in writing to both parties and asked for documents to be produced, including the file of source data. The parties complied with those measures within the time-limits set.
49. As regards the applicants’ request for the production by the ECB of the ‘administrative file’, it must be observed that they have had access to the file of source data. There is therefore no longer any need to rule on their request inasmuch as they have not specified which other documents it would have been useful to consult.
50. An attempt to reach an amicable settlement on the initiative of the Tribunal has been unsuccessful.
Law
1. The claims for annulment
51. Even though the claims for annulment are also formally directed against the decisions rejecting the requests for administrative review and against the decisions taken on 6 January 2005 rejecting the applicants’ internal grievances submitted on 9, 10 and 13 December 2004, they must be regarded, by virtue of settled case-law applicable mutatis mutandis
to the ECB, as directed against the decisions by which the ECB fixed the applicants’ remuneration, namely the decisions reflected in the salary statements for the month of July 2004 (see inter alia Case 293/87 Vainker v Parliament
[1989] ECR 23, paragraph 8).
52. In support of their action, the applicants raise three pleas in law alleging, in essence, breach of the obligation to consult the Staff Committee on the changes made to the Staff Rules in so far as they concern the salary adjustment for the years 2001 to 2003, non-compliance with the method of calculation and failure to apply retroactively the corrections to be made to the general salary adjustment.
The first plea in law, alleging breach of the obligation to consult the Staff Committee
Arguments of the parties
53. By their first plea in law, the applicants complain that the ECB, in essence, infringed the procedure for consultation of the Staff Committee in connection with the salary adjustment for the years 2001 to 2003. This plea in law comprises four parts: alleged infringement of Articles 45 and 46 of the Conditions of Employment, of Article 9 of the Memorandum of Understanding, of the principle of sound administration and of the obligation to act in good faith.
54. In this regard, the applicants claim that the source data, which had to be communicated to the ECB by the comparator organisations and on the basis of which it made its calculations in the context of implementing the methods of calculation for the years 2001, 2002 and 2003, were never communicated to the Staff Committee. In addition, they submit that the ECB did not comply with its obligation to consult the Staff Committee, referred to in Articles 45 and 46 of the Conditions of Employment and in the Memorandum of Understanding, inasmuch as it did not provide that committee with information in good time, it did not hold the technical meetings in the proper manner and arranged ad hoc meetings in an irregular manner, it replied only inadequately to the Staff Committee’s questions and the consultation procedure had not been concluded when the salary statements for the month of July 2004 were sent out.
55. Relying, inter alia, on the judgment of the Court of First Instance in Case T‑186/01 Robert v Parliament [2003] ECR‑SC I‑A‑131 and II‑631, paragraph 64, the ECB disputes the admissibility of the first plea in law. It contends that the applicants did not raise this plea at the pre-litigation stage
56. As to the merits, as well as pointing to ‘the strictest confidentiality’ of the source data communicated to it, the ECB states that the Directorate for Human Resources of the Administration DG nevertheless gave the members of the Staff Committee, ‘through the spokesperson … and the deputy spokesperson’, the opportunity to satisfy themselves as to the relevance of the tables provided by the ECB by allowing them to acquaint themselves with those documents at its premises, thus ensuring the transparency required in the context of the consultation without disclosing those documents in writing. This fact is confirmed by the statement from the five members of the previous Staff Committee.
Findings of the Tribunal
57. The four parts of the first plea in law must be examined together in so far as they are connected and the applicants have put forward a single series of arguments in support of them.
58. Under Article 46 of the Conditions of Employment, the Staff Committee must be consulted prior to ‘changes in [those] Conditions of Employment, the Staff Rules and related matters as defined under [Article] 45 [of those same Conditions of Employment]’. Such matters include those connected with remuneration.
59. Taking as its basis in particular those provisions, the Memorandum of Understanding gives concrete expression to the right of the Staff Committee to be consulted and lays down, in particular, the procedure to be followed, beginning with the obligation for the ECB to provide complete information (see paragraphs 10 and 11 of this judgment).
60. It should be recalled that the right of workers to information and consultation is a ‘general principle of employment law’ (Case T‑192/99 Dunnett and Others v EIB
[2001] ECR II‑813, paragraph 105), in the light of which the relevant provisions of the Memorandum of Understanding must be interpreted.
61. In that regard, the applicants raise several complaints in order to demonstrate that the consultation procedure called for by the relevant provisions of the Conditions of Employment and the Memorandum of Understanding was not properly followed by the ECB.
– The complaint alleging incompleteness of the information provided by the ECB
62. The applicants complain that the ECB did not provide ‘complete information’, inasmuch as access to the source data was not granted to all the members of the Staff Committee on account of the asserted confidentiality of those data.
63. In that regard, it must be reiterated that, pursuant to Article 6 of the Memorandum of Understanding, the request for consultation must be submitted ‘together with complete information’, allowing the Staff Committee to ‘acquaint with [ sic ] and to examine the subject-matter of the consultation, in so far as there are no overriding reasons for not doing so’.
64. The scope of the obligation to provide information must, in this case, be assessed in the light of the nature of the source data which, although held by the ECB, do not originate from it. However, it is apparent from the file that, at the material time, the comparator organisations made the source data available, in general, only on the assurance that they would not be widely disclosed, but used only for the purposes of the annual adjustment of the salaries of staff of the ECB.
65. In those circumstances, the ECB cannot be criticised for complying with the authorship rule laid down in Article 4(4) of Decision ECB/2004/3 by not disclosing the source data to all the members of the Staff Committee.
66. The argument that, since 2006, the ECB has made the source data available to all the members of the Staff Committee at the same time as the calculation of the salary adjustment figures cannot invalidate that conclusion. It was only in respect of the years subsequent to the facts in issue, as a consequence of an ECB initiative to that effect, that the comparator organisations agreed to a wider disclosure of their data.
67. On the other hand, the file shows, first, that the spokesperson for the Staff Committee and one of its deputy spokespersons did indeed have access to the source data. It was the Staff Committee itself which proposed that those two spokespersons should receive such access. That fact is borne out by an e-mail of 1 June 2004 from the deputy spokesperson, Mr van der Ark.
68. In addition, the spokespersons were elected and duly appointed by the Staff Committee itself, and not ‘chosen’ by the ECB administration as preferred interlocutors. The results of the election within the Staff Committee of its spokesperson, Mr van de Velde, and of his two deputies, Mr Van Damme and Mr van der Ark, had been communicated to the administration by memorandum of 17 February 2003. Accordingly, the spokespersons must be regarded as having been the representatives duly appointed by the Staff Committee itself for the purposes of the consultation on the salary adjustment for the years 2001, 2002 and 2003.
69. It must therefore be held that, through its representatives, the Staff Committee of the ECB, as a body, was acquainted with the source data (see, to that effect, the order in Case T‑27/00 Staff Committee of the ECB and Others v ECB
[2000] ECR‑SC I‑A‑217 and II‑987, paragraph 25).
70. Moreover, the information provided to the Staff Committee was essentially adequate, in so far as the committee had the opportunity to check, for each comparator organisation, all the relevant data and to compare them with the data in its possession, which had been collected and sent in by the staff representatives of the comparator organisations.
71. Furthermore, the Staff Committee did not express, in the course of the consultation procedure, any criticism or reservation regarding the communication of the source data. In particular, the memorandum of 14 June 2004 does not contain any reference to a lack of access to the source data.
72. It follows that the complaint alleging incompleteness of the information provided by the ECB must be rejected.
– The complaint alleging failure to provide information in good time
73. The applicants criticise the ECB for not having provided the necessary information in good time. In particular, the information given on Friday 11 June and Monday 14 June 2004 was given late.
74. In that regard, it must be pointed out that the preamble to the Memorandum of Understanding requires that all relevant information be provided at the earliest possible time. Admittedly, the consolidated tables shown to the Staff Committee on Friday 11 June and Monday 14 June 2004 by a representative of the ECB were not made available in such a manner as to allow a detailed analysis of all the statistical data concerned. In order for a Staff Committee decision to be taken on 14 June 2004, which was the latest working day (before the meeting of the Executive Board of the ECB on 15 June 2004) that would allow any ‘special’ adjustment of salaries in respect of the years 2001 to 2003 to take effect from 1 July 2004, at the same time as the normal adjustment in respect of 2004, there was not sufficient time left in which to carry out the necessary verification of certain data on which differences remained and then to enter into dialogue with the ECB.
75. However, it is important to note, first, that the Staff Committee had itself expressed in writing, on 3 June 2004, the expectation that any ‘special’ salary adjustment in respect of the years 2001 to 2003 would take effect in the 2004 normal adjustment exercise and had therefore accepted such a time constraint in full knowledge of the facts, since the ECB was required by Article 13 of the Conditions of Employment to make the salary adjustment for 2004 with effect from 1 July, and, secondly, that a large part of the relevant data had been discussed between the ECB and the Staff Committee between January and June 2004 as and when they were available, at scheduled and ad hoc technical meetings. The summary table presented on 11 June 2004 by the ECB was not a first presentation but the result of ongoing work carried out jointly by the ECB representatives, in particular Mr Kelly, and the designated representatives of the Staff Committee. After receiving that summary table, the Staff Committee, as stated in its memorandum of 14 June 2004, met with the Directorate for Human Resources staff concerned in an endeavour to understand and clarify the recalculated figures and concluded that disagreements remained only in relation to a small number of differences (three) which were likely to have little effect on the end result. For that reason, it was the Staff Committee that ‘suggested’ to the ECB in that memorandum that ‘the already agreed 0.3% difference … is added to the result for the 2004 GSA, and that any remaining difference is made up for in 2005 when the final figures are agreed’.
76. It follows that the complaint alleging failure to provide information in good time must be rejected.
– The complaint alleging that meetings were held in an irregular manner
77. The applicants criticise the fact that, outside the official procedure laid down by the Memorandum of Understanding, ‘unofficial’ consultation meetings were held with the Staff Committee’s spokespersons and not with the full Staff Committee, and without the latter’s knowledge.
78. However, the spokespersons were the representatives duly appointed by the Staff Committee itself for the purposes of the consultation (see paragraph 68 of this judgment).
79. Technical meetings and a simplified consultation procedure are in fact provided for in the Memorandum of Understanding. As regards the ad hoc meetings, the Memorandum of Understanding by no means excludes the holding of such meetings, since Article 15 expressly provides for a simplified consultation procedure. That article allows the parties to reduce the number of exchanges of views and also to derogate from the time-limits laid down by the memorandum, agreeing on shorter periods where appropriate; the drawing-up of minutes being provided for in the ECB Staff Rules only for meetings with the President.
80. Moreover, the file shows that relations between the Staff Committee whose term of office covered the years 2002 to 2004 and the ECB were based on a high degree of mutual trust and on open communication, a situation such as to justify the relative informality of certain meetings.
81. Finally, it is important to add that the ‘special’ consultation procedure followed for the salary adjustment for the years 2001 to 2003 had been agreed upon between the ECB and the Staff Committee, notably as a consequence of the expectation expressed by the latter in its memorandum of 3 June 2004. The Staff Committee was kept informed of the results of the meetings between its spokespersons and the ECB representatives, as evidenced by the Staff Committee’s internal memoranda and e‑mails annexed to the written submissions of the parties. In addition, reference should be made to the memorandum from the Staff Committee of 14 June 2004 which, by referring to elements of the procedure without expressing any criticism in that regard and by concluding, in principle, that the consultation procedure was ended (except for the three points to be resolved, see paragraph 27 of this judgment), must be regarded as containing approval of the lawfulness of the consultation procedure followed in this case.
82. Consequently, the complaint alleging that meetings were held in an irregular manner must be rejected.
– The complaint alleging that the replies to the Staff Committee’s questions were inadequate
83. The applicants complain that the ECB did not reply formally in writing to the Staff Committee’s letter of 25 March 2004.
84. It must be noted in that regard that the points raised by the Staff Committee in its letter of 25 March 2004 were examined at the consultation meetings held between April and June 2004. Consequently, the complaint made has no factual basis.
– The complaint alleging improper recourse to urgency
85. At the hearing, the applicants complained that the ECB imposed a situation of urgency on the Staff Committee and presented it with a fait accompli.
86. Irrespective of whether it is admissible, this complaint, which is broadly indissociable from the complaint alleging failure to provide information in good time (see paragraphs 73 to 76 of this judgment), is not justified, in so far as it was the Staff Committee itself that had asked the ECB, on 3 June 2004, less than two weeks before the meeting of the Executive Board of the ECB, which was due to decide on the obligatory annual adjustment for 2004, to incorporate the outcome of the ‘special’ consultation regarding the years 2001 to 2003 in that adjustment. In its memorandum of 14 June 2004, the Staff Committee indicated that it was indeed aware of the proposed timetable for the Executive Board of the ECB to confirm the salary adjustment for 2004.
87. As to the remainder, it is appropriate to refer in rebuttal of those complaints to the considerations set out in paragraphs 74 to 76 of this judgment.
88. Accordingly, the complaint alleging improper recourse to urgency must be rejected.
– The complaint alleging that the consultation procedure was not concluded when the salary statements for the month of July 2004 were sent out
89. The applicants criticise the ECB for not having concluded the consultation procedure relating to the years 2001 to 2003 before taking the decision on the salary adjustment in respect of that period.
90. In that regard, it must be pointed out that, by memorandum of 14 June 2004, the Staff Committee itself implicitly proposed to the ECB directorate that the consultation procedure be concluded, subject to the examination of three specific points not yet resolved in relation to the data from the Banque nationale de Belgique, the Deutsche Bundesbank and the Commission, on the understanding that this examination would have to be deferred with a view to incorporating the outcome in the consultation process of the following year (2005).
91. In that same memorandum, the Staff Committee ‘suggest[ed]’ that ‘the already agreed 0.3% difference …’ be added to the normal salary adjustment exercise for 2004 as part of the ‘special’ consultation concerning the years 2001 to 2003, while deferring the examination of three – specifically mentioned – points to the 2005 salary adjustment exercise. Even though those points were not yet resolved at the conclusion of the consultation, the Tribunal notes that they were excluded from the consultation relating to the years 2001 to 2003 and that, in any event, according to the Staff Committee itself, they were likely to have only a small effect on the end result of the salary adjustment for the years 2001 to 2003.
92. Moreover, the conclusion that the Staff Committee’s memorandum of 14 June 2004 articulates an understanding between that committee and the ECB on the fact that they were in a position to finalise the results of the ‘special’ consultation (‘the already agreed 0.3% difference …’), apart from three points which were unresolved but likely to have little effect on that result, is expressly confirmed by certain members of the previous Staff Committee, as evidenced by the statement of 13 June 2005 from five of them. Furthermore, that understanding is confirmed by the internal documents of the Staff Committee, produced by the applicants themselves.
93. Under Article 15 of the Memorandum of Understanding, it was permissible for the Staff Committee to reach an agreement on the establishment of a simplified consultation procedure, also covering the timing of its conclusion (see paragraph 81 of this judgment).
94. Concerning the role of the Staff Committee’s spokesperson, Mr van de Velde, and its deputy spokesperson, Mr van der Ark, who were both signatories to the memorandum of 14 June 2004, it must be pointed out that the Staff Committee was duly represented by its spokespersons for the purpose of sending that memorandum to the ECB on its behalf (see paragraph 68 of this judgment). In addition, the minutes of the Staff Committee meeting of 14 June 2004, produced by the applicants themselves, confirm that that memorandum reflects the position adopted by the majority of the members of the committee.
95. On 15 June 2004, the Executive Board of the ECB approved the proposal of the President of the ECB for an increase of 0.3% in respect of the special salary adjustment for the years 2001 to 2003 and resulting from the consultation procedure.
96. It follows that the Staff Committee agreed to the conclusion of the consultation procedure and to the principle of a 0.3% salary increase for the years 2001 to 2003, payable from the month of July 2004.
97. That finding is not invalidated by the applicants’ argument regardin g 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 n o
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 ackno wledged 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
Operative part
On those grounds,
THE TRIBUNAL (Full Court)
hereby:
1. Dismisses the action;
2. Orders the parties to bear their own costs.