JUDGMENT OF THE GENERAL COURT (Second Chamber)
12 March 2020
(*)
(Civil service — ECB staff — Remuneration — Household allowance — Dependent child allowance — Education and pre-school allowances — Eligibility — Rejection of applications for those allowances — Conditions of Short-Term Employment — Conditions and rules applicable to short-term employment contracts)
In Case T‑484/18,
XB, represented by L. Levi and A. Champetier, lawyers,
applicant,
v
European Central Bank (ECB), represented by D. Camilleri Podestà and F. von Lindeiner, acting as Agents, and by B. Wägenbaur, lawyer,
defendant,
APPLICATION based on Article 270 TFEU and Article 50a of the Statute of the Court of Justice of the European Union seeking, first, annulment of the ECB’s decisions of 6 November and 4 December 2017 refusing to grant certain allowances and, as required, of the ECB’s decisions of 2 February 2018 rejecting the request for administrative review and of 5 June 2018 rejecting the request for a grievance procedure and, secondly, an order that the ECB pay the sum corresponding to those allowances,
THE GENERAL COURT (Second Chamber),
composed F. Schalin (Rapporteur), acting as President, B. Berke and M.J. Costeira, Judges,
Registrar: P. Cullen, Administrator,
having regard to the written part of the procedure and further to the hearing on 1 October 2019,
gives the following
Judgment
Background to the dispute
1        On 3 July 2017, the applicant, XB, entered into a short-term contract with the European Central Bank (ECB) under which he was to work for the ECB for a period of one year, from 15 July 2017 to 14 July 2018, as an auditor in the Directorate Internal Audit.
2        The contract between the applicant and the ECB was concluded under the ESCB-IO programme which gives experts from national central banks belonging to the European System of Central Banks (ESCB) or from international organisations the opportunity to gain professional experience within the ECB.
It is governed by the Conditions of Short-Term Employment (‘CfSTE’) and the Rules for Short-Term Employment (‘RfSTE) in force at the ECB.
3        The applicant stated in his contract with the ECB that he had previously been employed by the Banco de España (Bank of Spain, Spain), which had granted him unpaid leave until 14 July 2018 in order to enable him to work at the ECB.
4        The applicant left Madrid (Spain) to move to Frankfurt am Main (Germany), the seat of the ECB, with his family, namely his wife, who had been granted unpaid leave by her employer in Spain and did not exercise any other professional activity, and the couple’s four minor children, born in 2002, 2004, 2008 and 2014 respectively.
5        On 16 October 2017, the applicant applied to the ECB for the household allowance, the dependent child allowance in respect of his four children and education allowance in respect of his three eldest children who were attending the European School.
6        On 4 December 2017, the applicant also applied for the preschool allowance in respect of his youngest child.
7        On 6 November 2017, the ECB informed the applicant that in view of his status as a short-term contract employee, he was not entitled to the allowances applied for in his application of 16 October 2017.
8        On 4 December 2017, the ECB informed the applicant that, on the same grounds, he was not entitled to receive the pre-school allowance.
9        On 15 December 2017, the applicant submitted an internal request for administrative review to challenge the decisions adopted by the ECB in his regard on 6 November and 4 December 2017 (together, the ‘contested decisions’), by which the ECB had refused to grant him the household allowance, the dependent child allowance in respect of his four children, the education allowance in respect of his three eldest children attending the European School and the pre-school allowance (together, the ‘family allowances’).
10      On 2 February 2018, the ECB rejected the applicant’s request for administrative review on the ground that, pursuant to the provisions governing his employment contract, it was not possible for him to be granted family allowances.
11      On 29 March 2018, the applicant sent the President of the ECB a request for a grievance procedure with a view to contesting the ECB’s position and obtaining payment of the amount corresponding to the family allowances that he had been refused, together with interest. That request for a grievance procedure was rejected by decision of the President of the ECB of 5 June 2018.
12      On 24 April 2018, the applicant and the ECB concluded an amendment to his contract, under which his contract was extended for a period of one year until 14 July 2019, followed by a second amendment, concluded on 18 October 2018, providing for a further extension for a period of one year until 14 July 2020.
Procedure and forms of order sought
13      By application lodged at the Court Registry on 14 August 2018, the applicant brought the present action.
14      Having received an application made by the applicant on the basis of Article 66 of the Rules of Procedure of the General Court, the latter, by decision of 17 September 2018, granted the application for anonymity and decided to omit the applicant’s name from the public version of the present judgment.
15      The defence, the reply and the rejoinder were lodged at the Court Registry on 1 November 2018, 9 January 2019 and 22 February 2019, respectively.
16      The parties were informed on 25 February 2019 that the written part of the procedure was closed, and the Court asked them to indicate whether they requested a hearing. On 8 March 2019, the applicant requested that a hearing be held. The ECB, for its part, did not take a position on that request.
17      On 19 March and 12 April 2019, the applicant submitted an offer of further evidence, relying on the provisions of Article 85(3) of the Rules of Procedure. On 3 April and 23 May 2019, the ECB lodged its observations on that offer of further evidence at the Court Registry.
18      The applicant claims that the Court should,
–        annul the contested decisions;
–        order the ECB to pay the sum corresponding to the family allowances applied for, together with default interest at the ECB rate + 2 points from the requested dates, taking into account the fact that corrective payments not relating to the month during which they were paid are subject to the tax to which they would have been subject had they been made at the proper time, in accordance with Regulation (EEC, Euratom, ECSC)
No 260/68 of the Council of 29 February 1968, laying down the conditions and procedure for applying the tax for the benefit of the European Communities (OJ 1968 L 56,
p. 8);
–        as required, annul the ECB’s decisions of 2 February 2018 rejecting the request for administrative review and of 5 June 2018 rejecting the request for a grievance procedure;
–        order the ECB to pay the costs.
19      The ECB contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
Law
20      In support of his action, the applicant claims that the legal framework applicable to short-term employment, namely the CfSTE and RfSTE, is unlawful and puts forward two pleas in law. The first plea has three parts, alleging, first, breach of the Charter of Fundamental Rights of the European Union (‘the Charter’) in so far as the provisions of the CfSTE and RfSTE infringe the rights of the child and the principles of family protection and non-discrimination, secondly, infringement of the principle of non-discrimination between temporary and permanent workers and, thirdly, infringement of the principle of non-discrimination and equality of taxpayers. The second plea alleges violation of the collective rights of ECB staff in so far as the Staff Committee was not properly consulted when the rules applicable to successive contracts were adopted, as resulting from Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP (OJ 1999 L 175,
p. 43), and were included in the CfSTE and RfSTE.
21      The ECB contends that, first, the applicant’s head of claim seeking that the Court order the ECB to pay the applicant the amount corresponding to the family allowances and, secondly, the applicant’s claim relating to benefits on appointment are inadmissible. The ECB submits that the remainder of the applicant’s claims should be rejected as unfounded.
The admissibility, first, of the head of claim seeking that the ECB be ordered to pay the amount corresponding to the family allowances and, secondly, of the claim relating to benefits on appointment
22      The ECB contends that the applicant’s head of claim seeking that the ECB be ordered to pay the amount corresponding to the family allowances is manifestly inadmissible since it is not for the Court to order an institution to adopt specific conduct given that, under Article 266 TFEU, the institution concerned is under the obligation only to adopt the measures necessary to comply with the judgment. The ECB also notes that the applicant has not presented the non-payment of the family allowances as damage that he has sustained whereas it would have been necessary in such a case to examine to what extent the applicant contributed to that damage by moving to Frankfurt am Main with his family and thus losing entitlement to Spanish family allowances.
23      Further, the ECB maintains that, in paragraphs 74 to 78 and 121 of the application, the applicant alleges a difference in treatment in relation to benefits on appointment. However, the applicant initiated an internal pre-litigation procedure and the exhaustion of such a procedure is one of the conditions for admissibility of proceedings before the Court. Accordingly, the challenging of such a decision does not fall within the scope of the present proceedings before the Court.
24      The applicant maintains that, in the event that the Court were to annul the contested decisions, it would
be for the ECB to comply with the rules pertaining to the family allowances to which he is entitled. The action should therefore be considered admissible.
25      Lastly, the applicant states that the action concerns only the question of family allowances and that the Court is not, in the present case, asked to give a ruling regarding the one-off payment of benefits on appointment. Consequently, it is not necessary for the Court to rule on the admissibility of such a request.
26      In the rejoinder, the ECB acknowledges that the matter of benefits on appointment does not, rationae materiae, fall within the scope of the present case. However, it adds that, if the contested decisions were to be annulled and, as a result, the ECB were required to pay the applicant the family allowances claimed, account should be taken of the fact that, in Spain, the applicant receives certain benefits from the Bank of Spain and that he has also received a number of benefits from the ECB that should be deducted from the sum to be paid.
27      In the first place, as regards the ECB’s contention that the applicant’s claim relates to benefits on appointment, it must be noted, as the parties have agreed in their written submissions, that none of the applicant’s heads of claims seek that the ECB be ordered to pay such benefits. In those circumstances, the plea of inadmissibility raised by the ECB, based on the failure to exhaust an internal pre-litigation procedure, is devoid of purpose.
28      In the second place, as regards the applicant’s head of claim seeking that the ECB be ordered to pay him the amount corresponding to the family allowances, it should be recalled that, under the first paragraph of Article 266 TFEU, an institution 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. In the present case, it must be noted, first, that, in his written submissions, the applicant seeks solely that the ECB be ordered to pay the sums which, in his view, he was wrongly denied and, secondly, that there is nothing to suggest that he intended those sums to be classified as damages.
29      It should also be pointed out, for the sake of completeness, that, as the ECB submits, in the event that the contested decisions were to be annulled, certain benefits that have already been paid to the applicant may need to be deducted from the sums to be paid. In those circumstances, even supposing that the applicant’s application were to be treated as a claim for compensation, such a claim would be premature and could not therefore be granted (see, to that effect, judgment of 17 November 2017, Teeäär v ECB, T‑555/16, not published, EU:T:2017:817, paragraph 59 and the case-law cited).
30      It is therefore necessary to declare inadmissible the head of claim seeking that the ECB be ordered to pay the amounts corresponding to the family allowances.
The first plea in law, alleging that the CfSTE and RfSTE are unlawful in so far as they infringe the principle of non-discrimination, the principle of equal treatment and certain principles arising from the Charter
31      In the present case, it is necessary to begin by examining the second part of that plea, in so far as the ECB’s option to lay down particular rules governing the status of certain categories of employees, in the event that it is recognised and was properly implemented in relation to the applicant, is likely to have an impact on the assessment of the first and third parts of the plea.
The second part of the first plea in law, alleging that the rules arising from the CfSTE and RfSTE breach the principle of non-discrimination between employees on short-term contracts and employees on fixed-term or permanent contracts
32      The applicant claims that employees on short-term contracts are treated differently and less favourably than employees on fixed-term or permanent contracts solely on the basis of their contract type. He maintains that that is not justified on objective, relevant and non-arbitrary grounds in the light of the objective pursued by the scheme of the requested family allowances, given that, inter alia, there is no link between such treatment and the objective of family allowances. On the other hand, the fact that the applicant’s wife and children are financially dependent on him is an objective fact and the costs he incurs in that regard are the same as those incurred by other staff members. In addition, a proportion of employees on fixed-term contracts are generally employed under a three-year contract that entitles them to receive family allowances, while employees on short-term contracts under the ESCB-OI programme may also work for the ECB for up to three years. That confirms the fact that the reason for the differential treatment is not the period of employment but the nature of the contract, which, moreover, the ECB admitted in the context of the grievance procedure.
33      The applicant submits that, in September 2017, the difference in gross salary compared to his colleagues under fixed-term or permanent contracts amounted to
EUR 2 597.07 per month with the latter receiving 25.28% more than him. He claims that there is also a difference in treatment that disadvantages staff on short-term contracts as regards the internally requested one-off payment of benefits on appointment, which, in the case of a family situation such as that of the applicant, amount to
EUR 20 438 for staff on fixed-term or permanent contracts, compared to only
EUR 582 for staff on short-term contracts.
34      The applicant submits that the question of the choice of his children’s place of residence, whether that be Madrid or Frankfurt am Main, is irrelevant in the present case. He also disputes the argument put forward by the ECB during the grievance procedure to the effect that he was recruited following less rigorous competitive procedures, given that, under Article 13a of the CfSTE, the requirements for recruiting staff on short-term contracts are the same as for other members of staff and the tasks performed are the same.
35      According to the applicant, the benefits specifically allocated to staff on short-term contracts are insufficient to compensate for the disadvantages affecting that category of staff where they have dependent children. In addition, his wife participated in the Professional Orientation Programme for Spouses and Recognised Partners of ECB staff, which is in principle reserved for staff employed under a permanent or fixed-term contract of at least one year, thus demonstrating that the ECB applies equal treatment in some regards.
36      In response, first, the ECB contends that the institutions of the European Union, such as the ECB, have the competence and discretion to establish distinct categories of employees, each with its applicable legal framework, and, subsequently, to decide which categories of employees are entitled to which financial rights and to which types of allowances.
37      Secondly, there are objective differences between short-term contracts under the ESCB-IO programme and fixed-term or permanent contracts, in particular because staff employed under the latter forms of contract have a stronger relationship with the employing institution. Those differences concern the purpose and methods of recruitment (given that the ESCB-IO programme is intended to foster the exchange of knowledge within the ESCB and to fulfil the ECB’s short-term needs for resources), the duration of contracts, the lack of probationary periods and the lack of performance evaluation, conditions relating to the termination of employment, the retention of a contract with a national central bank or an international organisation, the receipt of special allowances and benefits, in the present instance a lump sum corresponding to pension entitlement, a monthly temporary accommodation allowance and a special monthly travel allowance. Thus, in view of its rationale, the legal framework governing staff on short-term contracts is substantially different from that applicable to staff on fixed-term or permanent contracts, even if the salaries of those different types of staff are calculated on the basis of identical salary scales.
38      The ECB links the specific nature of the scheme for allowances and benefits according to the type of employment to the fact that employees under short-term contracts are presumed to retain their habitual residence and social security affiliation in their home Member State, which justifies the existence of the special scheme applied to them by the ECB on the basis that they are temporarily resident in Frankfurt am Main for the duration of their contract with the ECB, after which they are supposed to return to their original post.
39      The ECB maintains, in particular, that the applicant retains a set of benefits granted to him by the Bank of Spain during his period of employment with the ECB.
The fact that his wife is on unpaid leave also indicates the family’s intention to return to Spain at some point in the future.
40      Thirdly, according to the case-law, there is generally no breach of the principle of equal treatment on account of the existence of different categories of employees. The ECB enjoys a high degree of autonomy in view of its functional independence when legislating on staff matters. It has nevertheless confined itself to establishing the various categories of staff which fit its legitimate needs and designed the distinct legal frameworks applicable to those categories of staff exercising its autonomy and discretion.
41      Fourthly, the applicant has failed to establish any breach of the principle of equal treatment in the specific case of family allowances in view of the ECB’s legislative discretion in staff matters since that principle is infringed only where a differentiation is made which is arbitrary or manifestly inappropriate in relation to the objective pursued by the rules in question. The applicant has failed to establish that the factual situation of employees on short-term contracts and that of employees on fixed-term or permanent contracts is identical.
42      In that regard, the ECB maintains first of all that the type of employment relationship is essential in determining the entitlement to allowances, contrary to the view of the applicant, who aspires to disregard the existence of various categories of staff and accumulate the allowances specific to short-term contracts along with those specific to fixed-term and permanent contracts. That would lead to him being entitled to better treatment than any other member of staff and not merely
equal treatment. The applicant continues to receive benefits granted by the Bank of Spain and he and his wife are regarded as having maintained their tax domicile in Spain and are eligible for tax benefits such as the abatement for taxpayers with dependent children under the age of 25. Thus, he is in a particular situation where he retains his centre of interest in the Member State where he worked before joining the ECB and where he retains an employment contract, albeit suspended.
43      According to the ECB, the applicant also remains affiliated to the Spanish social security system as the Bank of Spain has continued to pay social security contributions on his behalf for two years. For that reason, he is not entitled to join the ECB pension scheme and is instead paid a lump sum which enables him to continue paying social security contributions in Spain.
44      Fifthly, according to the ECB, the applicant has failed to adduce evidence of unfavourable treatment compared with employees on fixed-term or permanent contracts since, each month, he receives three special allowances which generally provide him with higher remuneration than employees in the first category. In view of his specific family situation with four dependent children, the applicant would indeed receive higher remuneration if he were a member of staff on a fixed-term contract. However, that is due to the tax abatement for dependent children laid down in Regulation
No 260/68 which the ECB is required to apply and the legality of which the applicant does not contest. Moreover, it would not be relevant to compare the sum that the applicant receives monthly as a pension contribution with the pension contribution for staff on permanent or fixed-term contracts, since the latter does not constitute immediate cash revenue and is not readily available.
45      In his reply, the applicant submits that, in Spain, he does not directly receive any monthly family support or contributions to the pension scheme, apart from the fact that the Bank of Spain has continued to contribute to the national pension scheme on his behalf
for two years. In so far as neither he nor his wife receive salary income in Spain, they do not benefit from the exemption of
certain amounts per dependent child in respect of national annual income tax. He claims that some of his colleagues at the Bank of Spain were also recruited by the ECB under fixed-term or even permanent contracts and continued to accrue certain benefits from their former employer while benefiting from the family allowances paid by the ECB.
He submits that maintaining his tax residence in Spain is not a personal choice; it is rather a rule applicable to all ECB staff in accordance with the Protocol on the Privileges and Immunities of the European Communities of 8 April 1965 (OJ 1967 152,
p. 13; ‘the Protocol’).
46      In its rejoinder, the ECB states that the CfSTE prohibit the accumulation of benefits of the same nature from different sources, both national and EU sources. In addition, the applicant disregards the fact that, if he had been seconded to another EU institution, he would have been given the status of Seconded National Expert (SNE) which, from a financial point of view, would be much less favourable than the current status he enjoys at the ECB.
47      At the hearing, the applicant also invoked the fact that, according to the case-law, changes in the factual and legal situation of an employee could lead to a situation involving discrimination which initially did not exist. In that regard, he submits that the change in the tasks assigned to employees on short-term contracts, in so far as their tasks are now identical to those of employees on fixed-term or permanent contracts, and the fact that short-term contracts may be renewed twice to cover a total period of three years, must be regarded as a change in his factual and legal situation which may be the basis of a finding that a situation involving discrimination against him
has arisen. The applicant also claims that the ECB raised, for the first time, at the hearing, the fact that contracts of employees on fixed-term contracts may be concluded for a period of more than six years and thus differ in that respect from short-term contracts, which constitutes a new argument that was raised out of time and is therefore inadmissible.
48      In response, the ECB argued at the hearing that, since its establishment in 1999, the rationale of the ESCB-IBO programme has not changed, namely to strengthen the collaboration between the ECB and the central banks of the ESCB.
That also explains why the salaries of staff participating in that programme, recruited on short-term contracts, come from a separate budget decided by the Governing Council of the ECB on an annual basis, with no certainty regarding renewal. Thus, staff recruited in that capacity do not know the duration of their secondment in advance. The ECB also submitted that the duration of the short-term contracts concluded in that context was originally set at 11 months and was gradually extended to three years in order to allow the persons concerned to better plan their work, despite the insecurity associated with the renewal of their contracts. Furthermore, as regards the duration of fixed-term contracts, the ECB maintained that, in accordance with 2.0a of the ‘Rules on Fixed-term Contracts for ECB Staff’, which were public and therefore known to the applicant, such contracts could have a duration of three years, but could also be extended to a total duration of six or even ten years.
49      As a preliminary point, it should be noted that the principle of non-discrimination relied on by the applicant must be understood as referring to the principle of equal treatment to which it can be equated (see, to that effect, judgment of 15 April 2010, Gualtieri v Commission, C‑485/08 P, EU:C:2010:188, paragraph 72).
50      In that regard, it must be borne in mind that there is a breach of the principle of equal treatment where two classes of persons whose factual and legal situations are not essentially different are treated differently or where different situations are treated in an identical manner, unless such treatment is objectively justified (see judgment of 6 September 2018, Piessevaux v Council, C‑454/17 P, not published, EU:C:2018:680, paragraph 78 and the case-law cited).
51      According to the case-law, in order to determine whether or not there is a breach of the principle of equal treatment, it is necessary to have regard, inter alia, to the object and purpose of the provision alleged to have infringed that principle
(see judgment of 6 September 2018, Piessevaux v Council, C‑454/17 P, not published, EU:C:2018:680, paragraph 79 and the case-law cited).
52      It should also be recalled that, as an EU institution, the ECB has the right to establish different categories of staff corresponding to its legitimate needs, either as officials or as agents falling under another scheme (see, to that effect, judgment of 30 September 1998, Ryan v Court of Auditors, T‑121/97, EU:T:1998:232, paragraphs 98 and 104) and that, when it establishes rules relating to matters concerning the regime applicable to the staff it employs, it has a large degree of autonomy in view of its functional independence (see, to that effect, judgment of 22 October 2002, Pflugradt v ECB, T‑178/00 and T‑341/00, EU: T: 2002: 253, paragraph 48).
53      In the present case, the applicant does not dispute that the contested decisions were adopted in accordance with the relevant legal framework, namely the CfSTE and the RfSTE, but he challenges the legality of that framework in so far as it involves treating employees on short-term contracts less favourably than employees on fixed-term or permanent contracts, without objective justification.
54      As regards, more specifically, his professional situation as an employee on a short-term contract, the applicant submits in essence that, in the light in particular of the nature of the tasks performed and the total duration of his employment with the ECB, that situation does not differ significantly from that of employees on fixed-term or permanent contracts and, accordingly, there is no justification for applying to him a less favourable regime than the latter, in particular in terms of family allowances.
55      It is therefore necessary to examine, in the first place, the object and purpose of the provisions governing the applicant’s status and, in the second place, whether the specific features of that status, in so far as they differ from those of employees on fixed-term or permanent contracts, are objectively justified.
56      First, as regards the object and purpose of the provisions governing the applicant’s status, paragraph 2 of the RfSTE lists, under the heading ‘Conditions for short-term contracts and successive contracts’, the cases in which such contracts may be concluded. This essentially relates to the ability to fill posts temporarily to replace staff absent for medical or other reasons, or seeking the assistance of persons who can provide specific expertise on an ad hoc basis or being able to manage a temporary increase in work, it being noted that persons thus recruited must not, in principle, have previously worked for the ECB.
57      Under
the terms of the contract concluded between the ECB and the applicant on 3 July 2017, the applicant was recruited under a short-term contract in the context of the ESCB-IBO programme, which, it should be recalled, enables experts from national central banks belonging to the ESCB, such as the Bank of Spain, to gain professional experience at the ECB by carrying out tasks in various areas on an essentially temporary basis. In that regard, it should be noted that the duration of the contract concluded on 29 June 2017 by the applicant is limited to one year, and the extension of that contract on two occasions to bring the total duration of the collaboration to three years (and it should be noted that such an extension has not been proven to be automatic) does not call into question the short-term nature of that contract.
58      Thus, the object of the provisions governing the applicant’s status, namely the CfSTE and the RfSTE and the contract concluded with the ECB under the ESCB-IO programme, is to enable employees of national central banks, such as the Bank of Spain, to make a temporary contribution to the work of the ECB, in particular with a view to cooperation within the ESCB.
59      Secondly, as regards the specific features of the applicant’s status, it is apparent that they relate to objectives for temporary collaboration intended to accommodate within the ECB staff who, while it is true that they perform tasks that may be identical to those of employees on fixed-term or permanent contracts, are recruited in a spirit of cooperation within the ESCB in order to disseminate knowledge of the ECB’s working methods to staff of national central banks and international organisations. After the end of their employment with the ECB, the employees concerned are expected to return to their original employer to build on the skills acquired during their short-term employment with the ECB.
60      The use of staff on short-term contracts is therefore not intended to fill permanent posts, but to establish collaboration that is essentially temporary in nature. An indication of that objective is that employees on short-term contracts in the context of the ESCB-IO programme, such as the applicant, retain a link with their original employer in the form of an employment contract whose performance is merely suspended during the period of employment with the ECB.
The applicant was granted unpaid leave by the Bank of Spain during that period. It should also be noted that the contract concluded between the ECB and the applicant states that its validity is conditional on the secondment of the applicant by the Bank of Spain to the ECB and that, if the contract between the applicant and the Bank of Spain were to terminate during the period of performance of the contract concluded with the ECB, that contract would also terminate on the same date.
61      The particular context in which the applicant came to collaborate with the ECB has certain consequences with respect to his original employer. Even though the parties disagree on whether the applicant continues to receive tax benefits in Spain in connection with the structure of his household and even though the applicant correctly states that maintaining his tax residence in Spain results from application of the rules arising from the Protocol and not a personal choice, it is nevertheless common ground between the parties that the Bank of Spain continues to temporarily pay social security contributions on behalf of the applicant, intended, inter alia, to finance the applicant’s national pension and that, at the end of his contract with the ECB, the applicant will have the option of returning to the post he previously held in Spain and that the period of his secondment to the ECB will be taken into account in the calculation of his seniority.
62      At the same time, the applicant receives three special allowances paid to him by the ECB in view of his status as an employee on a short-term employment contract (see paragraph 37 above). In particular, he receives the monthly temporary accommodation allowance, which is intended, as explained by the ECB, to enable him to afford temporary local accommodation while maintaining his usual residence, his family home, in his home Member State for the limited period of performance of his short-term contract with the ECB.
Thus, employees on short-term contracts may relocate with their families to Frankfurt am Main, but, as argued by the ECB, that is a personal choice, whereas the monthly temporary accommodation allowance is rather intended to enable them to find temporary accommodation while maintaining their home and family ties in their home Member State. Lastly, as the ECB submits, unlike the posts of staff on fixed-term or permanent contracts, the post occupied by the applicant is particular in so far as it is not subject to a probationary period or a performance appraisal procedure.
63      Thus, as an employee of the ECB on a short-term contract in the context of the ESCB-IO programme, the applicant is in a situation characterised by particular constraints, inter alia linked to the fact that he came to work temporarily at the seat of the ECB in Frankfurt am Main in order to take part in a collaborative operation between the ECB and national central banks. Nevertheless, those constraints are offset by a system of special allowances and benefits and by the maintenance of a relationship with his previous employer, in this case the Bank of Spain. As submitted by the ECB, staff on short-term contracts enjoy a status similar to that of SNEs. While the latter continue to be paid by their national employers while receiving an allowance from the host EU institution or entity, their particular status meets the need for cooperation and experience sharing between EU institutions and bodies and the administrations of the Member States.
64      In those circumstances, having regard to the objective pursued by the ESCB-IO programme, the ECB did not misuse its discretionary power relating to staff matters by establishing a specific compensation scheme in respect of the applicant as an employee on a short-term contract, in so far as it is not apparent that the differentiation that the ECB made was inappropriate in relation to the objective pursued (see, to that effect, judgment of 8 January 2003, Hirsch and Others v ECB, T‑94/01, T‑152/01 and T‑286/01, EU:T:2003:3, paragraph 51 and the case-law cited).
65      Moreover, contrary to the claims of the applicant, it is not apparent that the factual situation of employees on short-term contracts and that of employees on fixed-term or permanent contracts is identical. With regard more specifically to the applicant, as established in paragraphs 61 and 62 above, although he does not benefit from the family allowance scheme for staff on fixed-term or permanent contracts, he does, instead, benefit from a specific scheme of allowances and benefits that was specifically designed to meet the particular nature of his situation, which tends to show that the ECB did not make an arbitrary differentiation in his regard compared to staff on fixed-term or permanent contracts. Lastly, as recalled by the ECB, under the public rules governing fixed-term contracts, the duration of such contracts is not restricted to three years, which is equivalent to the maximum duration of a short-term contract that is renewed twice, but can also be extended to six or even 10 years. Not only is that fact not a new argument that would be inadmissible, since it merely reflects the legal framework applicable in the present case, it also makes it possible to identify one of the differences in the nature of the situation of staff on short-term contracts and that of staff on permanent contracts.
66      It is apparent that all the foregoing considerations, in so far as they characterise the applicant’s specific situation with regard to the objective pursued by the ESCB-IO programme, are sufficient to establish the special nature of that situation from a legal and factual point of view and to differentiate it from the situation of ECB staff on fixed-term or permanent contracts, in particular because the applicant’s situation at the ECB is based on a collaboration that is essentially temporary, even if the total duration of his employment at the ECB has evolved with the possibility of it being extended to three years. In so far as that situation entails special basic characteristics, it justifies treatment that is itself special and that precludes the finding of any unequal treatment.
67      Consequently, the second part of the first plea, alleging that the CfSTE and RfSTE are unlawful in so far as they infringe the principle of non-discrimination between temporary and permanent workers, is unfounded and must be rejected.
The first part of the first plea, alleging breach of the Charter in so far as the provisions of the CfSTE and RfSTE infringe the rights of the child and the principles of family protection and non-discrimination
68      The applicant claims that the provisions of the Charter are binding on the ECB, in particular in so far as they recognise the best interests of the child. However, the provisions of the CfSTE and RfSTE, in so far as they do not provide for any family allowance for employees on short-term contracts, by contrast with the rules applicable to ECB staff on fixed-term or permanent contracts, fail to have regard to the purpose of family allowances, which is to provide for the maintenance and education of children, while the
payment of such allowances cannot depend on the criterion of the length of employment of the employee receiving them.
69      The applicant adds that his personal and family situation should entitle him to family allowances, in so far as he fulfils all the conditions set out in the Conditions of Employment for Staff of the ECB, with the exception of the condition relating to the status of an employee on a fixed-term or permanent contract, which, in his view, is however covered by paragraph 15 of the CfSTE, in force on 15 July 2017, which sets out the legislation and principles governing short-term contracts.
70      Furthermore, since, pursuant to Articles 19 and 20 of the Staff Regulations of Officials of the European Union, temporary agents are entitled to the same allowances as those granted to officials, the same treatment should be applied, directly or by analogy, to ECB staff on short-term contracts.
71      The ECB also erroneously maintained, in the rejection decision of 5 June 2018, that the applicant could seek payment of the Kindergeld (child benefit) from the German authorities
by making the relevant application. However, he does not fulfil the conditions for receipt of that benefit because his wife does not and has never worked in Germany. Furthermore, in any event, he claims that the ECB is required to supplement the amount paid by the German authorities with the payment of a monthly sum of
EUR 342 per dependent child.
72      According to the applicant, the contested decisions infringe Article 33(1) of the Charter, which relate to the protection of family and professional life and, in so far as they refuse to grant family allowances, increase the risk of poverty, exclusion and marginalisation of his children as well as restricting his ability, and that of any employee on a short-term contract, to relocate in order to take up his duties at the ECB.
73      The applicant maintains that he is not seeking the creation of new allowances and merely seeks the payment of existing allowances, which is reserved on a discriminatory basis for employees on fixed-term or permanent contracts. He also emphasises the need for a swift decision in the light of Article 7 of the European Convention on the Exercise of Children’s Rights, adopted by the Council of Europe on 25 January 1996.
74      In response, first, the ECB contends that no provision of EU law requires Member States or EU institutions to pay specific family allowances or to ensure that such allowances meet specific thresholds. EU law merely lays down rules on the coordination of family allowances, whereas the conditions governing entitlement to receive family allowances fall within the competence of the Member States or the EU institutions.
75      As far as the ECB is concerned, Article 36 of the Protocol on the Statute of the ESCB and of the ECB provides that ‘the Governing Council, on a proposal from the Executive Board, shall lay down the conditions of employment of the staff of the ECB’. However, in view of the specific nature of short-term contracts, no specific legislation has been enacted creating specific entitlements to family allowances, the existence of which, moreover, cannot be inferred from paragraph 15 of the CfSTE.
76      There is no principle requiring a supranational body such as the ECB to pay family allowances whenever a member of staff, irrespective of the nature of their contract, is not entitled to family allowances at national level and where, as in the present case, it was the staff member’s own decision to move his family to Germany while his centre of interests
remained in Spain, with ongoing affiliation to social security in Spain.
77      Any other approach would mean that the applicant could unduly accumulate three special allowances paid to him by the ECB, to which his short-term contract entitles him alongside a number of rights granted to staff under fixed-term or permanent contracts.
78      Secondly, the ECB argues that the Charter does not impose any obligation on the EU institutions to establish and grant family allowances. In particular, it follows from Article 51(2) that the Charter does not extend the scope of application of EU law beyond the European Union’s competences, which, in the field of social security, is limited to coordination and support and does not cover provisions whose implementation would be binding on the EU institutions. That is confirmed by Article 34(2) of the Charter, which makes entitlement to social security benefits and social benefits subject to EU law and national laws and practices.
79      Thirdly, according to the ECB, contrary to what the applicant falsely claims, there is no evidence in the present case of the applicant’s children being at risk of poverty, exclusion or marginalisation. Moreover, the existence of such a risk cannot be inferred from the non-payment of family allowances, since that would oblige the EU institutions to introduce such allowances in all cases. In addition, the amount that the applicant receives each month from the ECB in addition to his net monthly salary, namely the monthly pension contribution, the travel allowance and the reimbursement of rent, enable him to contribute to the maintenance of his family even if they do not formally constitute family allowances. Moreover, the applicant was fully informed of and agreed to the amount of his future salary before joining the ECB and had the option of accepting or refusing that contract.
80      In its rejoinder, the ECB emphasises that the all-inclusive salary package that the applicant receives monthly, namely
EUR 9 803.04 in September 2017, is sufficient to provide for his family’s needs without exposing his children to a risk of poverty, exclusion or marginalisation. The applicant claims that he spends large sums on accommodation but that is a personal life choice which has nothing to do with the ECB.
Furthermore, the applicant has indeed continued to receive certain benefits in Spain, in particular payments made by the Bank of Spain to a special social security contribution scheme for a period of two years, constituting financial compensation which, under paragraph 2 of the CfSTE, can be repaid to the ECB.
In addition, in Spain, the applicant can benefit from the abatement for dependent children under the age of 25, from the tax abatement for large families, either in the form of a tax credit or in respect of other income that he may continue to receive, such as, for example, investment income.
81      In the first place, the findings resulting from the examination of the second part of the plea, from which it follows that there was no breach of the principle of non-discrimination in the light of the difference in status between, on the one hand, the category of employees on short-term contracts and, on the other, that of employees on fixed-term or permanent contracts, have certain consequences in relation to the alleged breach of the principle of equal treatment in so far as the CfSTE and RfSTE do not provide for family allowances.
82      According to the case-law, it is not possible to question the differences in status between the various categories of persons employed by the European Union and the fact that some categories of persons employed by the European Union may enjoy guarantees under the Staff Regulations and social security benefits which are not given to other categories cannot, therefore, be regarded as discrimination (see judgment of 23 January 1986, Soma and Others v Commission, 171/84, EU:C:1986:28, paragraph 30 and the case-law cited).
83      As the ECB contends, the different treatment of the various categories of persons employed by the ECB stems from the type of employment contract between the ECB and its staff, which may, depending on the case, give rise to various types of financial benefits, including family allowances.
84      The nature and characteristics of the employment contract are therefore a prerequisite for the possible payment of family allowances and the family situation of an employee is taken into account only at a second stage in order to determine the amount of those allowances.
85      Moreover, contrary to the applicant’s argument, it is not possible to find that, in the light of paragraph 15 of the CfSTE, the condition relating to the status of being an employee on a fixed-term or permanent contract should in the present case be regarded as being satisfied, directly or indirectly.
86      The first subparagraph of paragraph 15 of the CfSTE, in the version in force on 1 April 2017, reads as follows:
‘No specific national law governs these Conditions of Short-Term Employment. The ECB shall apply (i) the general principles of law common to the Member States, (ii) the general principles of [European] Union law, and (iii) the rules contained in the European [Union] regulations and directives concerning social policy which are addressed to Member States. Whenever necessary, these legal instruments will be implemented by the ECB.
[EU] recommendations in the area of social policy will be given due consideration. In interpreting the rights and obligations under the present Conditions of Short-Term Employment, due regard shall be shown for the authoritative principles of the regulations, rules and case-law which apply to the staff of other [European] Union institutions.’
87      As is apparent from its wording, paragraph 15 of the CfSTE is, at most, limited to identifying the legal framework that applies to short-term contracts, without it being possible to infer that an employee on a short-term contract should be treated in the same way as an employee on a fixed-term or permanent contract, or that such an obligation applies to the ECB.
88      In any event, an infringement of the principle of non-discrimination relating to family allowances not being granted to employees on short-term contracts could result only from a demonstration that that category of employees is in a legal and factual situation that is not essentially different from that of employees on fixed-term or permanent contracts. However, as is apparent from the analysis carried out in paragraphs 61 to 63 above, that is not the case in the present instance, in particular because the applicant retains a link with his previous employer, the Bank of Spain, which granted him temporary unpaid leave, and because the maintenance of that link gives him social rights in Spain, in particular the payment of contributions by the Bank of Spain for two years to the national pension scheme (see paragraph 45 above), supplemented by the special allowances paid to him by the ECB, thus placing him in a specific situation with regard to the other categories of ECB employees.
89      In the second place, it is necessary to consider to what extent the Charter, notwithstanding the ECB’s autonomy to determine the rules governing the status of the different categories of staff meeting its specific needs, may require the ECB to provide a family allowance scheme for short-term staff.
90      In so far as the payment of family allowances is linked to the presence of dependent children in the applicant’s household, it should be noted that, with regard to the rights of the child, Article 24 of the Charter reads as follows:
‘1. Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.
2. In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.
3. Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.’
91      Although Article 24 of the Charter lays down general principles, inter alia that children have the right to the protection and care necessary for their well-being, it is not possible to infer from that provision, in the circumstances of the present case, a specific obligation on the part of the ECB, as an EU institution, to establish a special scheme of family allowances.
92      Furthermore, it should be recalled that, even though, in accordance with Article 51 of the Charter, its provisions are addressed in particular to the EU institutions, including the ECB (see Article 13 TEU), which are bound to respect the rights, observe the principles and promote the application thereof (judgment of 23 May 2019, Steinhoff and Others v ECB, T‑107/17, under appeal, EU:T:2019:353, paragraph 95), the fact remains that, the Charter, pursuant to Article 51(2) thereof, does not extend the field of application of EU law beyond the powers of the European Union or establish any new power or task for the European Union, or modify powers and tasks as defined in the Treaties.
93      Lastly, and in any event, it must be pointed out that, while the applicant claims that his children are at risk of poverty, exclusion and marginalisation, that claim, which is theoretical, is not corroborated by any evidence and therefore cannot be regarded as established.
94      Since it is apparent that the first part of the first plea is not well founded, it must be rejected.
The third part of the first plea in law, alleging breach of the principles of non-discrimination and equal treatment of taxpayers
95      The applicant claims that he is discriminated against as regards tax because his family and personal situation is neither taken into account in relation to tax payments in his State of residence nor in his State of employment, with the result that a higher amount is directly deducted from his remuneration by way of tax. The fact that the ECB’s contribution to the pension scheme is paid in cash further aggravates the situation since the corresponding amount is regarded as salary and is accordingly taxed. The applicant considers that he pays over
EUR 1 224.64 more in tax per month than an employee on a fixed-term or permanent contract in a family and professional situation comparable to his own.
96      The applicant claims that the ECB is infringing the provisions of Article 3(4) and Article 6(2) of Regulation
No 260/68, which provide, first, for an additional abatement for each dependent child allowance (which is denied to employees on short-term contracts with dependent children on the sole ground that they are not entitled to the dependent child allowance) and, secondly, for the family situation of employees with dependent children to be taken into account when calculating the minimum subsistence rate.
97      Yet, according to the applicant, under Section 3.3.4 of the ECB Staff Rules, the calculation of the tax liability of an ECB employee should not depend on the amount paid by the ECB in respect of dependent children given that the tax abatement for a dependent child established by Regulation No 260/68 is granted for social reasons connected with the existence of the child and the cost of actually maintaining the child and, accordingly, should not be linked to the duration of employment. As a result of this unfavourable situation, the applicant has to maintain his family with savings, such as the money that he had set aside for retirement. He submits, inter alia, that, in the event that his short-term contract were renewed for a total period of 36 months, he would receive only 73.85% of the remuneration received by an employee on a fixed-term or permanent contract in the same family situation.
98      In the reply, the applicant asserts that the ECB’s application of the provisions of Article 3(4) of Regulation
No 260/68 modifies the aim pursued by the abatement laid down in that provision since the abatement for a dependent child is refused on the sole ground of the absence of a dependent child allowance, without taking into account the fact that that allowance is ‘paid’, ‘recognized’ or ‘granted’.
99      The ECB disputes that it misapplies Article 3(4) of Regulation No 260/68. It maintains that the tax abatement laid down in that provision supplements the dependent child allowance and therefore may not be applied where that allowance is not paid. Regulation No 260/68 makes a distinction between employees receiving family allowances and those not receiving them. In those circumstances, the applicant may not claim that he is in a situation identical to that of a member of staff in receipt of that allowance. That interpretation has indeed been confirmed by the case-law. In addition, the link established between the tax abatement in question and the entitlement to dependent child allowance corresponds to the differences in working conditions that the ECB established in the exercise of its discretionary powers relating to the legal frameworks applicable to the different categories of staff.
100    Furthermore, in so far as the applicant alleges a failure to take into consideration his family and personal situation both in his State of residence and in the State of employment, account must be taken of the fact that he is a tax resident in Spain, which entitles him to the normal tax advantages granted to tax residents of that Member State under national legislation, such as, for example, the reduction in the taxable base of
EUR 13 600 for taxpayers with dependent children under the age of 25. In any event, in the light of the autonomy of the European Union’s tax system, even if the applicant did not receive any dependent child allowance under a national scheme, that would not establish unequal treatment.
101    It should be noted that the applicant essentially considers that he is deprived of the tax abatement provided for in Article 3(4) of Regulation
No 260/68 because he does not receive the dependent child allowance.
102    As regards the applicant’s argument that the ECB has misapplied the second subparagraph of Article 3(4) of Regulation
No 260/68 by making the tax abatement for a dependent child conditional on the applicant being entitled to the child allowance, it should be recalled that the provision in question provides that ‘an additional abatement equivalent to twice the amount of the allowance for a dependent child shall be made for each dependent child of the person liable as well as for each person treated as a dependent child within the meaning of Article 2(4) of Annex VII to the Staff Regulations [of Officials of the European Union].
103    It is appropriate to uphold the ECB’s interpretation of that provision, to the effect that the additional abatement in question supplements the dependent child allowance and that only actual payment of dependent child allowance by an EU institution may give entitlement to that abatement. That interpretation may be inferred in particular from the wording of the judgment of 27 November 1980, Sorasio-Allo and Others v Commission (81/79, 82/79 and 146/79, EU:C:1980:270, paragraph 17), which, in relation to determining the conditions under which each of the parents of a dependent child may benefit from the abatement in question, held that, ‘for the purpose of applying the provisions of the second subparagraph of Article 3(4) of Regulation
No 260/68 a child cannot be deemed to be actually maintained by each of his parents individually, so that, if not more than one dependent-child allowance is to be paid in respect of him within the meaning of Annex VII to the Staff Regulations [of Officials of the European Union] and of Article 3(3) of Regulation
No 260/68, an “additional” abatement within the meaning of the said second subparagraph cannot be allowed in respect of him either’. Through the wording of that judgment, the Court clearly introduced a link between the benefit of the abatement and the receipt of child allowance.
104    It is also apparent that that interpretation is compatible with the wording of Article 3(3) of Regulation
No 260/68 in so far as the calculation of the abatement can be carried out only by taking into account the amount of the dependent child allowance, yet that amount is not known in the applicant’s case, since he does not receive it.
105    As regards the argument that the applicant, as a taxpayer, is discriminated against
since his personal and family situation is not taken into account either in his State of employment, Germany, or in his State of tax residence, Spain, that argument must also be rejected.
106    In that respect, it should be borne in mind that, under Article 13 of the Protocol, the applicant remains resident in Spain for tax purposes. Even though, as the applicant maintains, the tax abatements for taxpayers with dependent children under the age of 25 do not confer any concrete advantage on him given that he receives only minimal income in Spain, that does not mean that the ECB has treated him in a discriminatory manner.
107    First, this is due to the fact that, apart from the remuneration he receives for his work at the ECB, the applicant does not receive any income from Spain that may enable him to benefit more significantly from the abatements he is entitled under the Spanish tax system, which is not the responsibility of the ECB.
108    Secondly, it is apparent that that situation is linked to the overlap between the European Union’s tax system, which is an independent system which is applied irrespective of the national systems, including the Spanish tax system, but of which no account is to be taken as regards the principle of equal treatment where it is liable to give rise to inequalities (see, to that effect, judgment of 27 November 1980, Sorasio-Allo and Others v Commission, 81/79, 82/79 and 146/79, EU:C:1980:270, paragraph 18).
109    In those circumstances, the third part of the first plea must be rejected since it is apparent that it is not well founded, and, accordingly, the first plea must be rejected in its entirety.
The second plea, alleging infringement of the collective rights of ECB staff in so far as the Staff Committee was not properly consulted when the rules applicable to successive contracts were adopted, as resulting from Directive 1999/70 and included in the CfSTE and RfSTE
110    The applicant claims that the CfSTE and the RfSTE are unlawful on the ground that the Staff Committee was not properly consulted during the consultation process initiated on 25 January 2012 by the Directorate General Human Resources with the Staff Committee for the purposes of implementing Directive 1999/70 and the rules on successive contracts at the ECB.
According to the applicant, in the context of the consultation, an exchange of views concerning the financial rights of employees on short-term contracts took place, but the ECB did not take into account the opinion of the staff representatives at all, contrary to the requirements of Directive 1999/70.
111    First, the ECB contends that the applicant’s arguments are contradictory, since he invokes the fact that the Staff Committee was not properly consulted yet makes reference to the content of letters exchanged between the ECB and the Staff Committee over a period of nine months, between January and September 2012, on the matter of fixed-term work — an exchange which also concerns the matter of staff on short-term contracts.
112    Secondly, the applicant misinterprets the objective and rules of the right of consultation by claiming that the consultation would have been valid only if the ECB had followed the position of the Staff Committee, whereas the right to consultation simply involves a right to be heard, which includes the obligation to inform the Staff Committee and to give it the opportunity to express its opinion. Moreover, the applicant’s arguments are vague, in particular when citing Directive 1999/70 without further explanation, and are therefore inadmissible pursuant to Article 76(d) of the Rules of Procedure. The applicant also refers to collective agreements that the ECB should have concluded. Yet the case-law has already established in that regard that, where the rights and obligations of employees are already sufficiently determined by the applicable provisions, whose validity is not called into question, negotiation between social partners to determine working conditions is not required.
113    In the reply, the applicant also claims that, although the Staff Committee was formally consulted, that consultation was not carried out in accordance with the requirements of Directive 1999/70. Furthermore, the decision to extend the maximum duration of short-term contracts in the context of the ESCB-OI program to a total of three years was adopted without a collective agreement and without the Staff Committee consultation procedure being duly completed for the purposes of reaching an agreement.
114    Directive 1999/70, in so far as it concerns the implementation of the framework agreement on fixed-term work reached at EU level on 18 March 1999 by the social partners, is liable, as from its implementation within the ECB, to affect the situation of ECB employees on short-term contracts whose employment conditions are governed by the CfSTE and the RfSTE.
115    It is common ground between the parties that the implementation within the ECB of Directive 1999/70 as from January 2012 required the consultation of the Staff Committee in accordance with the legislation in force.
116    The framework agreement on fixed-term work annexed to Directive 1999/70 mentions in the ninth paragraph of the preamble thereto that ‘the parties to this agreement request that the social partners are consulted prior to any legislative, regulatory or administrative initiative taken by a Member State to conform to the present agreement’ and that requirement for prior consultation also applies to the EU institutions to the extent that they implement that directive.
117    The framework agreement on fixed-term work annexed to Directive 1999/70 also includes clause 4, entitled ‘Principle of non-discrimination’, which aims to prevent discrimination against part-time workers as compared with permanent workers, and paragraph 3 thereof states that ‘the arrangements for the application of this clause shall be defined by the Member States after consultation with the social partners and/or the social partners, having regard to [EU] law and national law, collective agreements and practice’.
118    Lastly, paragraphs 39 and 40 of the CfSTE state that the Staff Committee represents the general interest of employees on short-term contracts, particularly as regards employment regulations, and that it is to be consulted prior to the adoption of amendments to the CfSTE or RfSTE.
119    However, the parties disagree on the scope of the consultation of the Staff Committee as required by the provisions of Directive 1999/70 and those of the CfSTE and RfSTE.
120    In that regard, it should be borne in mind that, according to the case-law, the scope of the obligation to consult the Staff Committee, as imposed by the legislature, must be assessed in the light of its objectives with that consultation being intended to afford all members of staff, through that committee (as the representative of their shared interests), the opportunity to be heard prior to the adoption or amendment of acts of general application which concern them (see, to that effect, judgment of 20 November 2003, Cerafogli and Poloni v ECB, T‑63/02, EU:T:2003:308, paragraph 24).
121    However, since the consultation of the Staff Committee amounts merely to a right to be heard, it is one of the most modest forms of participation in a decision-making process, since in no circumstances does it involve any obligation for the administration to act upon the observations made by the Staff Committee in the course of the consultation (see, to that effect, judgment of 20 November 2003, Cerafogli and Poloni v ECB, T‑63/02, EU:T:2003:308, paragraph 23).
122    In the present case, Annexes A 27 to A 31 to the application show that the Staff Committee was indeed consulted during the implementation within the ECB of Directive 1999/70. In that context, the ECB’s Directorate of Human Resources, Budget and Organisation sent a letter to the Staff Committee on 25 January 2012 informing it of proposed measures to implement Directive 1999/70 within the ECB, such as the introduction of a maximum duration for fixed-term contracts and a waiting period for the renewal of such contracts. That was followed by an exchange of correspondence with the Staff Committee, which, in a letter of 12 March 2012, expressed, inter alia, its reservations regarding the ECB’s initial proposals.
123    Following a second round of exchanges, the ECB closed the consultation by sending a letter to the Staff Committee on 4 September 2012, informing it that some of its suggestions, which in that instance did not concern only short-term employees, had been retained, such as the abolition of successive probationary periods or the grant of special leave for the purpose of seeking employment.
124    Analysis of the provisions on the basis of which the Staff Committee was consulted, in particular the framework agreement on fixed-term work annexed to Directive 1999/70, do not support a finding that the Staff Committee had more than a mere right to be heard. Moreover, even though they did not concern only the category of employees on short-term contracts, in so far as the implementing measures finally adopted also concerned other categories of employees on fixed-term contracts, such as temporary employees, those measures were based on the suggestions made by the Staff Committee. It is therefore, in any event, incorrect to consider that the Staff Committee’s opinion was not taken into account.
125    In those circumstances, the applicant’s argument based on failure to consult the Staff Committee has no basis in fact and it is therefore apparent that it is unfounded. Accordingly, without it being necessary to examine the question of its admissibility in the light of Article 76(d) of the Rules of Procedure, the second plea in law and, consequently, the claim for annulment in its entirety must be rejected.
126    It should also be pointed out that it is not apparent that the further evidence submitted by the applicant after the lodging of the rejoinder, relating in particular to his tax situation in Spain in 2018 and the location of the accommodation he lives in with his family in Frankfurt am Main, is, in any event, irrelevant to the resolution of the present dispute and, therefore, it is not necessary to examine its admissibility under Article 85(3) of the Rules of Procedure.
127    It follows from all of the foregoing that the action must be dismissed in its entirety.
Costs
128    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.
129    Since the applicant has been unsuccessful, he must be ordered to pay the costs, in accordance with the form of order sought by the ECB.
On those grounds,
THE GENERAL COURT (Second Chamber)
hereby:
1.      Dismisses the action;
2.      Orders XB to pay the costs.
Schalin
Berke
Costeira
Delivered in open court in Luxembourg on 12 March 2020.
E. Coulon
S. Gervasoni
Registrar
President
*      Language of the case: English.