JUDGMENT OF THE GENERAL COURT (Seventh Chamber)
17 November 2017 (*)
(Civil service — ECB Staff — Career transition Support — Lack of competence of the author of an act adversely affecting a party — Rules of sound administration in the management of staff — Material and non-material damage)
In Case T‑555/16,
Raivo Teeäär, former member of the staff of the European Central Bank, residing in Tallinn (Estonia), represented initially by L. Levi and M. Vandenbussche, and subsequently by L. Levi, lawyers,
applicant,
v
European Central Bank (ECB), represented by F. Malfrère and K. Kaiser, acting as Agents, and by B. Wägenbaur, lawyer
defendant,
APPLICATION based on Article 270 TFEU and seeking, first, annulment of the ECB’s decision of 18 August 2014 rejecting the applicant’s application for career transition support and, secondly, compensation in respect of the material and non-material harm allegedly suffered by the applicant,
THE GENERAL COURT (Seventh Chamber),
composed of V. Tomljenović, President, E. Bieliūnas and A. Kornezov (Rapporteur), Judges,
Registrar: P. Cullen, Administrator,
having regard to the written part of the procedure and further to the hearing on 19 January 2017,
gives the following
Judgment
Background to the dispute
1        The applicant, Mr Raivo Teeäär, was recruited on 1 July 2004 as Senior Production Expert in the European Central Bank (ECB) Banknotes Directorate. Upon his recruitment, and in accordance with the vacancy notice, he was allocated to the F/G salary band of the ECB salary structure. Within that salary band, he was placed at point 136, given the length, the level and the relevance of his previous professional experience.
2        Since his recruitment, the applicant has progressed steadily within his salary band and, in January 2011, he reached the salary cap, which corresponds to point 169 and beyond which no further advancement was possible.
3        The ECB salary structure consists of 12 single salary bands, designated by the letters A, B, C, D, E, F, G, H, I, J, K and L, and two salary broadbands, designated by the letters E/F and F/G. Each salary band includes several points which go from a minimum to a maximum salary value. The salary broadbands, such as the F/G salary band, result from the integration of two single salary bands, in this case the F salary band and the G salary band, so that the start of the F/G salary broadband is the same, in terms of annual revenue, as that of the single salary band F, whereas its cap is the same as that of the single salary band G.
4        The allocation of staff members to a given salary band is determined on the basis of their job title, as is apparent from an ECB document entitled ‘Allocation of Positions to Bands — List of Generic Job Titles’. As a general rule, progression is possible only within the salary band thus determined, that is from one point to a higher point in the same salary band. Therefore, movement to another salary band is usually possible only following a recruitment procedure proper for a different position allocated to that other salary band or on being promoted exceptionally ‘ad personam’ or by a position upgrade.
5        On the basis of Article 36.1 of the Protocol on the Statute of the European System of Central Banks and of the ECB (ESCB) and the Rules of Procedure of the ECB, the Governing Council of the ECB adopted, by decision of 9 June 1998, amended on 31 March 1999 (OJ 1999 L 125, p. 32), the Conditions of Employment for Staff of the ECB (‘the Conditions of Employment’). Subsequently, the Conditions of Employment were amended several times. In the version applicable to the present proceedings, Article 11(e) of the Conditions of Employment, provides that staff members are entitled to support for a voluntary career transition to a career outside the ECB (‘CTS’) if they resign in the circumstances and in accordance with the procedure laid down by the ECB Staff Rules (‘the Staff Rules’).
6        Article 2.3.1 of the Staff Rules, implementing Article 11(e) of the Conditions of Employment, in the version applicable to the present proceedings, provides that staff members with permanent contracts who have remained for at least 8 consecutive years in the same single salary band, or at least 12 consecutive years in the same salary broadband, satisfy the conditions for entitlement to CTS.
7        On 12 August 2014, that is, after more than 10 consecutive years in the F/G salary broadband, the applicant applied for a newly-created programme at the ECB for the implementation of CTS (‘the CTS programme’). In connection with that application (‘the CTS application’), the applicant tendered his resignation from his position at the ECB as of 12 December 2014, subject to his CTS application being approved. In an annex to his CTS application, the applicant maintained that, while he did not formally satisfy the prerequisite of having at least 12 consecutive years of service in the F/G salary broadband, as required in Article 2.3.1 of the ECB Staff Rules, he found himself in the same situation as a staff member in the single salary band G and that, accordingly, the prerequisite of having at least eight consecutive years of service required for staff in that salary band should also be applied to him, failing which this would amount to a discriminatory and manifestly inappropriate differentiation in his regard.
8        By email of 18 August 2014, Ms D., a staff member belonging to the team responsible for the administration of the CTS programme within the ECB Directorate-General for Human Resources, Budget and Organisation (‘the CTS team’), sent notification, on behalf of the CTS team, of the rejection of the CTS application on the ground that the applicant did not meet the eligibility criteria because he had remained in the same F/G broadband for less than 12 years (‘the contested decision’).
9        On 14 October 2014, the applicant requested an administrative review of the contested decision.
10      His request was rejected by decision of the ECB Deputy Director-General for Human Resources, Budget and Organisation dated 9 December 2014.
11      On 9 February 2015, the applicant raised a complaint against that decision, which was rejected by decision of the ECB President of 2 April 2015.
Procedure and forms of order sought
12      By application lodged at the Registry of the Civil Service Tribunal on 9 June 2015, the applicant brought the present action. The case was registered as Case F‑86/15.
13      By document lodged at the Registry of the Civil Service Tribunal on 30 June 2015, the applicant asked to be granted anonymity. On 17 September 2015, the Civil Service Tribunal informed the applicant that it had decided to refuse the application for his name to be left out of publications relating to the case concerned.
14      By decision of 22 June 2016, the Civil Service Tribunal assigned the Judge Rapporteur to explore the possibility of resolving the dispute by means of an amicable settlement, in accordance with Article 7(4) of Annex 1 to the Statute of the Court of Justice of the European Union, in the version in force on the date on which the present action was brought, and Article 90(1) and (2) of the Rules of Procedure of the European Union Civil Service Tribunal.
15      Failing an agreement between the parties in an amicable settlement, the Judge Rapporteur, after an exchange of correspondence and following the informal meeting held at the Civil Service Tribunal building on 8 July 2016, decided that the proceedings should resume.
16      Pursuant to Article 3 of Regulation (EU, Euratom) 2016/1192 of the European Parliament and of the Council of 6 July 2016 on the transfer to the General Court of jurisdiction at first instance in disputes between the European Union and its servants (OJ 2016 L 200, p. 137), the present case was transferred to the General Court as it stood as at 31 August 2016. The case was registered as Case T‑555/16 and was assigned to the Seventh Chamber.
17      The written part of the procedure having taken place before the present case was transferred to the General Court, the Court asked the parties, in letters sent by the Court Registry on 24 October 2016, whether they wished a hearing to take place.
18      By letter dated 14 November 2016, the applicant informed the Court that a hearing was not necessary but would, nevertheless, be advantageous. By letter of 15 November 2016, the ECB, in turn, stated that holding a hearing was not necessary.
19      Acting on a proposal from the Judge-Rapporteur, the Court (Seventh Chamber) decided to open the oral part of the procedure.
20      The parties presented oral argument and their replies to the Court’s oral questions at the hearing on 19 January 2017.
21      The applicant claims that the Court should:
–        annul the contested decision;
–        grant him compensation for the material damage which he has suffered, consisting of the CTS financial package, estimated at EUR 101 447, increased by default interest calculated at 3 points above the ECB rate;
–        grant him compensation for the non-material damage which he has suffered, estimated at EUR 10 000;
–        order the defendant to pay the costs.
22      The ECB contends that the Court should:
–        dismiss the action as in part inadmissible and in part unfounded;
–        order the applicant to pay the costs.
Law
Admissibility
Admissibility of the new evidence
23      By letter lodged at the Registry of the Civil Service Tribunal on 22 August 2016, the applicant submitted new evidence under Article 57 of the Rules of Procedure of the European Union Civil Service Tribunal. That new evidence consists of several documents relating to an ECB proposal, dated 3 August 2016, seeking to introduce a new regulatory framework for CTS and, at the time it was filed as new evidence, subject to consultation with the Staff Committee. That new regulatory framework for CTS, if approved, will harmonise the eligibility criteria for staff members wishing to receive CTS, namely, 10 consecutive years in the same salary band, without any distinction as to the type of band (whether single or double).
24      By decision of the President of the Court of 14 September 2016, the new evidence was placed on the file and a period fixed, in accordance with Article 85(4) of the Rules of Procedure of the General Court, for the ECB to take a decision on that new evidence, which it did within the specified time.
25      The ECB, in essence, challenges the admissibility of that new evidence on the ground that it is irrelevant, in so far as the proposed new regulatory framework, first, does not apply ratione temporis to the CTS application and, secondly, cannot be interpreted as an acknowledgment of the unlawfulness of the scheme applicable to that application.
26      In accordance with Article 57 of the Rules of Procedure of the Civil Service Tribunal, which continues to apply for the purpose of the assessment of the admissibility of the new evidence (see, to that effect, judgment of 15 July 2015, Spain v Commission, not published, EU:T:2015:496, paragraph 24), the parties may submit evidence or offer further evidence in support of their submissions before the oral part of the procedure is closed, provided that the delay in the submission of such evidence is duly substantiated.
27      In the present case, it is sufficient to note that the documents produced by the applicant as new evidence relate to a proposal by the ECB made after the closure of the written part of the procedure. Their late submission is therefore justified. The ECB’s argument alleging that the new evidence is irrelevant concerns the merits of the arguments which the applicant bases on that new evidence and not its admissibility. The new evidence is, therefore, admissible.
The admissibility of the action in so far as it concerns the allocation of the applicant to the F/G salary broadband
28      In his reply, the applicant sets out the submission raised implicitly in his application that, by his action, he challenges not only the legality of the contested decision and, as a defence, that of Article 2.3.1 of the ECB Staff Rules, but also ‘indirectly’ the legality of his allocation to the F/G salary broadband. In his view, that part of the action is admissible because the ECB understood his request for an administrative review and his grievance as relating also to his allocation to that salary band and, in any event, the contested decision amounts to a new and substantial fact that re-opens the two-month period for challenging that allocation.
29      According to the ECB, that part of the action is inadmissible in so far as, contrary to what is required by Article 36.2 of the Statute of the ESCB in conjunction with Article 42 of the Conditions of Employment, the applicant never challenged his allocation to the F/G salary broadband in any internal grievance procedure. In addition, given that the contested decision does not relate directly to the applicant’s allocation, it cannot be regarded as a new and substantial fact that re-opens the period for bringing an action.
30      In that regard, it should be recalled that under Article 21, first paragraph, of the Statute of the Court of Justice of the European Union, in conjunction with Article 7(1) of Annex 1 to that statute, in the version in force on the date the action was brought, and Article 50(d) of the Rules of Procedure of the European Union Civil Service Tribunal, only the form of order set out in the originating application may be taken into consideration and the substance of the application must be examined solely with reference to the order sought (see, to that effect and by analogy, judgments of 8 July 1965, Krawczynski v Commission, 83/63, EU:C:1965:70, p. 785; of 25 September 1979, Commission v France, 232/78, EU:C:1979:215, paragraph 3, and of 26 October 2010, Germany v Commission, T‑236/07, EU:T:2010:451, paragraph 27).
31      Furthermore, it is apparent from the case-law that, failing any matters of law or of fact which came to light in the course of the written procedure that justify an amendment of the form of order sought, only the order sought in the originating application may be taken into consideration (see, to that effect and by analogy, judgments of 8 July 1965, Krawczynski v Commission, 83/63, EU:C:1965:70, p. 785, and of 26 October 2010, Germany v Commission, T‑236/07, EU:T:2010:451, paragraph 28).
32      In the present case, in his application initiating proceedings, the applicant does not seek annulment of the decision concerning his allocation to the F/G salary broadband, which took place at the time of his recruitment in 2004. Nor does such a head of claim appear in his reply, although there the applicant submits that the contested decision constitutes a ‘new and substantial fact’ enabling him also to challenge his allocation to the F/G salary broadband. Even if, by that submission, the applicant sought to present a new head of claim seeking annulment of that allocation, it should be noted that, in any event, the contested decision, adopted on 18 August 2014, does not amount to a matter of law or fact which came to light in the course of the written procedure and does not, therefore, justify the presentation of that new head of claim at the reply stage.
33      Having regard to the foregoing, it must be held that the action is inadmissible in so far as it relates to the alleged unlawfulness of the decision concerning the applicant’s allocation to the F/G salary broadband at the time of his recruitment.
Substance
34      In support of his action, the applicant puts forward three pleas in law, alleging, first, infringement of the principle of equal treatment, secondly, a manifest error of assessment and infringement of the principle of proportionality and, thirdly, infringement of the principle of non-discrimination on grounds of age.
35      In the present case, the Court considers it necessary to raise of its own motion a ground involving a question of public policy, alleging the incompetence of the author of the contested decision.
Incompetence of the maker of the contested decision
36      The Court has consistently held that the EU judicature is required to raise of its own motion questions as to the competence of the authority whose measure is being challenged before it, even if none of the parties has made any application to that effect, when the lack of competence of the author of an act adversely affecting a party constitutes a ground involving a question of public policy that the Court not only may but must raise of its own motion (judgments of 13 July 2000, Salzgitter v Commission, C‑210/98 P, EU:C:2000:397, paragraph 56; of 14 December 2016, SV Capital v ABE, C‑577/15 P, EU:C:2016:947, paragraphs 31 and 32, and of 8 July 2010, Commission v Putterie-De-Beukelaer, T‑160/08 P, EU:T:2010:294, paragraph 61). The requirement that the EU judicature should raise of its own motion a ground involving a question of public policy must be complied with in the light of the rule that the parties should be heard (judgments of 2 December 2009, Commission v Ireland and Others, C‑89/08 P, EU:C:2009:742, paragraph 54, and of 13 December 2013, Hungary v Commission, T‑240/10, EU:T:2013:645, paragraph 71).
37      In the present case, the contested decision was signed by Ms D. ‘on behalf of the CTS Team’. That decision reads as follows:
‘... thank you for your [CTS application] and the explanatory notes. We regret to inform you that you do not fulfil the eligibility criteria because you have remained in the same F/G salary broadband for less than 12 years. Your [CTS application] cannot therefore be granted ...’
38      At the hearing, the Court questioned the ECB on the identity and the capacity of the author of the contested decision. In reply to that question, the ECB explained that Ms D. was, at the time the contested decision was made, one of the people working in the CTS Team within the Directorate-General for Human Resources, Budget and Organisation. The ECB being, however, unable to provide information on the possible existence of an express delegation of power or authority to sign to Ms D. by the competent authority, the Court adopted a measure of organisation of procedure pursuant to Article 89 of the Rules of Procedure. By that measure, the ECB was invited to submit evidence of any such delegation. The applicant was, at the same time, invited to submit in good time its comments on the response given by the ECB.
39      In its reply to the measure of organisation of procedure, the ECB submits, first, that Mr K., who was Director-General of the ECB Directorate-General for Human Resources, Budget and Organisation at the time the contested decision was taken and whom it deemed competent to take the contested decision, had not delegated his power to take decisions in respect of the CTS programme to Ms D. or the CTS Team. Secondly, Mr K. states that he himself took the decision to reject the CTS application after discussing it with the CTS Team, without, however, there being any written record of that decision. Mr K.’s decision was then communicated to the applicant by the CTS Team.
40      In its observations on the ECB’s reply to the measure of organisation of procedure, the applicant argues that it is apparent from a combined reading of Articles 2.3.8 and 2.3.9 of the Staff Rules that only the ECB Executive Board was authorised to accept or reject his CTS application, since no provision expressly confers the power to accept or reject CTS applications on the Director-General of Human Resources, Budget and Organisation. As the ECB Executive Board had not expressly delegated the power to take the contested decision to Mr K., that decision was taken by an authority not competent to do so.
41      In the present case, the Court notes, first, that Article 2.3.8 of the Staff Rules simply provides that ‘eligible’ staff members may ‘present’ their application to participate in the CTS programme to the Directorate-General for Human Resources, Budget and Organisation, accompanied by a resignation notice, in accordance with Article 11(c) of the Conditions of Employment, and an application for a redundancy payment.
42      Secondly, CTS being limited to the first 50 staff members who meet the requirements and who have applied for it, in accordance with the procedure set out in Article 2.3.8, Article 2.3.9 of the Staff Rules provides that ‘the [ECB] Executive Board shall approve or reject all such applications from eligible members of staff presented the same day if there are more than 50 applications’.
43      Thus, first, Article 2.3.8 of the Staff Rules states only that CTS applications by staff who are ‘eligible’ are to be ‘presented’ to the Directorate-General for Human Resources, Budget and Organisation, without, however, specifying that that directorate also takes decisions on the admission of eligible candidates to the CTS programme. Secondly, Article 2.3.9 of the Staff Rules gives the ECB Executive Board power to ‘accept’ or ‘reject’ the CTS applications of eligible staff members presented the same day where there are more than 50 such applications, which is a different situation from that which is the subject of the present dispute.
44      Therefore, it is indeed possible, as the ECB submits, that the Director-General for Human Resources, Budget and Organisation is the competent authority to adopt the contested decision. However, the competence of that director is not supported by evidence of the relevant applicable provisions.
45      Furthermore, at the hearing, the ECB did not deny that the wording of Articles 2.3.8 and 2.3.9 of the Staff Rules was not very clear. That lack of clarity also led a member of the CTS Team to suggest asking for advice from the ECB legal service concerning the applicant’s eligibility, on the basis that ‘... there must be an internal procedure for assessing the legal arguments and for deciding, if necessary, on [the applicant’s] eligibility’, as confirmed by an email of 4 July 2014 sent by that member of the CTS Team.
46      In any event, it is not apparent from the content of the contested decision that it was taken by the Director-General for Human Resources, Budget and Organisation.
47      It must be stated, first, that the contested decision was signed by Ms D. ‘on behalf of the CTS team’. However, no provision in the applicable regulatory framework gives the ‘CTS Team’ or the staff working in that team, such as Ms D., any power to adopt decisions in respect of the CTS programme.
48      Secondly, it is clear from the file that neither Ms D. nor the CTS Team has any delegated power to adopt such decisions. It is common ground between the parties that the Director-General of Human Resources, Budget and Organisation gave neither Ms D. nor the CTS Team any delegated power in that respect. In particular, as has been noted at paragraph 39 above, the ECB stated that the Director-General had not delegated his powers in respect of the CTS programme.
49      According to settled case-law, the delegating authority, even when entitled to delegate its powers, must take an express decision transferring them and the delegation may relate only to clearly defined executive powers (judgments of 13 June 1958, Meroni v High Authority, 9/56, EU:C:1958:7, p. 42 to 44, 46 and 47; of 26 May 2005, Tralli v BCE, C‑301/02 P, EU:C:2005:306, paragraph 43, and of 9 July 2008, Kuchta v BCE, F‑89/07, EU:F:2008:97, paragraph 54).
50      As to the ECB’s assertion that the contested decision was taken by Mr K., the then Director-General of Human Resources, Budget and Organisation, the fact remains that that assertion is not supported by any material in the file. That decision, signed by Ms D. ‘on behalf of the CTS team’, contains no reference to any decision taken by Mr K. in person and refers to no meeting or even consultation of Mr K. concerning the application at issue. Furthermore, Mr K.’s name does not even appear amongst those listed as copied in the email notifying the applicant of the contested decision. In addition, that unsupported assertion made by the ECB is further undermined by the fact that the applicant’s application for an administrative review was rejected by the Deputy Director-General of Human Resources, Budget and Organisation, that is to say, by a member of staff hierarchically answerable to the Director-General of Human Resources, Budget and Organisation.
51      In the light of the foregoing, it must be concluded that the contested decision was adopted by an authority without competence to do so.
52      A decision taken by an authority without competence to do so because of infringement of the rules for allocation of the powers conferred upon it, such as the contested decision, may however be annulled only if the failure to comply with those rules adversely affects one of the guarantees given to officials by the Staff Regulations of Officials of the European Union or the principles of good administration in matters of staff administration (judgments of 30 May 1973, Drescig v Commission, 49/72, EU:C:1973:58, paragraph 13; of 7 February 2007, Caló v Commission, T‑118/04 and T‑134/04, EU:T:2007:37, paragraph 68, and of 7 July 2009, Bernard v Europol, F‑99/07 and F‑45/08, EU:F:2009:84, paragraph 88).
53      In that regard, it must be borne in mind that the rules of sound administration in the management of staff require, inter alia, that the allocation of powers within the institutions be clearly defined and published (judgments of 9 July 2008, Kuchta v ECB, F‑89/07, EU:F:2008:97, paragraph 62, and of 30 November 2009, Wenig v Commission, F‑80/08, EU:F:2009:160, paragraph 94). The same obligation applies to ECB management bodies, which are in no different position from that in which the management bodies of other EU bodies and institutions find themselves in their relations with their staff (judgment of 14 October 2004, Pflugradt v ECB, C‑409/02 P, EU:C:2004:625, paragraph 37).
54      Accordingly, in the light of all the foregoing considerations in paragraphs 41 to 53 above, it must be concluded that there has been an infringement of the principles of sound administration in the management of staff, within the meaning of the case-law referred to at paragraphs 52 and 53 above, justifying the annulment of the contested decision on the ground of lack of competence, and it is unnecessary to examine the merits of the other pleas in law relied on in support of the claim for annulment.
The claim for damages
55      The applicant considers that he has suffered material and non-material damage as a result of the unlawful conduct relied on in his claim for annulment. In his opinion, the material damage corresponds to the amount of CTS which he should have received and which he estimates at EUR 101 447.
56      The applicant claims that he was caused non-material damage, quantified at EUR 10 000, by the fact that when applying for CTS, he was obliged to resign from his job at the ECB and that, his application for CTS not having been granted, he had to leave with none of the financial guarantees offered by that programme.
57      The ECB contends that any financial loss that the applicant may have suffered was caused, not by the contested decision, but by his autonomous decision to leave the ECB. It submits that he would have had to resign from the ECB only if his application for CTS had been granted. Accordingly, the applicant could have continued to work at the ECB.
58      Pursuant to Article 266, paragraph 1, TFEU, the institution, office or entity whose act has been declared void or whose failure to act has been declared contrary to the Treaties is to be required to take the necessary measures to comply with the judgment.
59      In so far as, by his claim for damages for the loss allegedly suffered, the applicant seeks an order that the ECB pay him an amount that would be owed to him on the basis of the decision that the ECB will be required to take in compliance with the present judgment ordering annulment, such a claim is premature and cannot, therefore, be accepted (see, to that effect, judgment of 12 May 2016, Guittet v Commission, F‑92/15, EU:F:2016:118, paragraph 198).
60      As regards the non-material damage, it must be recalled that the annulment of an act which has been challenged may in itself constitute appropriate and, in principle, sufficient reparation for that damage (judgment of 21 January 2004, Robinson v Parliament, T‑328/01, EU:T:2004:13, paragraph 79).
61      In the present case, the applicant claims to have suffered non-material damage because, on applying for CTS, he had to resign from the ECB even though his CTS application had been rejected. However, that claim has no basis in fact or in law. First, it is apparent from the annex attached to his CTS application that the applicant expressly declared that his resignation from the ECB was conditional on his being granted CTS. Secondly, as the ECB submits, the CTS programme was organised in such a way that departure from the ECB under the CTS programme was conditional on the CTS application being accepted. It follows that the applicant was not obliged to resign following the rejection of his CTS application.
62      Accordingly, given that the applicant does not submit any other circumstance or evidence capable of supporting his claim for compensation for material and non-material damage which he claims to have suffered, that claim must be dismissed.
Costs
63      Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
64      In the present case, since the ECB has been unsuccessful in its main submissions, it must be ordered to pay the costs, as applied for by the applicant.
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby:
1.      Annuls the decision of the European Central Bank (ECB) of 18 August 2014 rejecting Mr Raivo Teeäär’s application for the career transition support put in place by that institution;
2.      Dismisses the action as to the remainder;
3.      Orders the ECB to pay the costs.
Tomljenović
Bieliūnas
Kornezov
Delivered in open court in Luxembourg on 17 November 2017.
E. Coulon
V. Tomljenović
Registrar
President
*      Language of the case: English.