JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Third Chamber)

12 February 2014

Case F‑83/12

Jean-Pierre Bodson and Others

v

European Investment Bank (EIB)

(Civil service — EIB staff — Contractual nature of the employment relationship — Remuneration — Reform of the EIB awards scheme)

Application: under Article 270 TFEU, in which the applicants seek, first, annulment of the decision contained in their salary slips of April 2012 concerning awards, in so far as it applies the decision of 14 December 2010 of the Board of Directors of the European Investment Bank (‘EIB’) and the decisions of 9 November 2010 and 16 November 2011 of the EIB’s Management Committee reforming the awards scheme, and, second, an order that the EIB pay them the difference between the amounts due pursuant to the above decisions and under the previous scheme, together with damages.

Held: The action is dismissed. Mr Bodson and the seven other applicants are to bear their own costs and are ordered to pay those incurred by the European Investment Bank.

Summary

1. Judicial proceedings — Measures of organisation of procedure — Request to withdraw from the file documents drawn up by a party’s lawyer — Documents drawn up in the context of collective bargaining with the defendant institution — Not confidential in nature — Rejection

2. Officials — Staff of the European Investment Bank — Actions — Time-limits — Requirement to act within a reasonable period — Application by analogy of Article 91(3) of the Staff Regulations — Not permissible — Assessment according to the circumstances of the case

(Art. 270 TFEU; Staff Regulations, Art. 91(3))

3. Actions brought by officials — Staff of the European Investment Bank — Act adversely affecting an official — Definition — Annual award granted on a discretionary basis depending on the recipient’s performance — Included

(Staff Regulations, Art. 90(2); Staff Regulations of the European Investment Bank, Annex II)

4. Actions brought by officials — Staff of the European Investment Bank — Interest in bringing proceedings — Action directed against the first salary slip following a reform of the remuneration system — Admissibility

(Staff Regulations, Arts 90 and 91; Staff Regulations of the European Investment Bank, Art. 20)

5. Officials — Staff of the European Investment Bank — Regulatory nature of the employment relationship — Organisation of departments and fixing of staff remuneration — Administration’s discretion

(Protocol on the Privileges and Immunities of the European Union, Art. 21; Staff Regulations of the European Investment Bank, Arts 13 and 20; Rules of Procedure of the European Investment Bank, Art. 31)

6. Officials — Staff of the European Investment Bank — Remuneration — Reform of the awards scheme — Administration’s discretion — Scope — Obligation to retain the previous, more favourable scheme — None

7. Officials — Staff of the European Investment Bank — Organisation of departments — Administration’s discretion — Judicial review — Limits

1. Written communications between client and lawyer, where the lawyer is not bound to the client by a relationship of employment, are confidential provided that they are made for the purposes and in the interests of the client’s right of defence.

A legal consultation drawn up in the context of collective bargaining between staff representatives and the management of an institution, the purpose of which has nothing to do with seeking enforcement of a measure or bringing legal proceedings, does not constitute a written communication made for the purposes and in the interests of the right of defence of a lawyer’s client.

(see paras 46, 47)

See:

18 May 1982, 155/79 AM & S v Commission, para. 21; 14 September 2010, C‑550/07 P Akzo Nobel Chemicals and Akcros Chemicals v Commission, para. 41

4 April 1990, T‑30/89 Hilti v Commission, para. 13

2. As regards the period within which an action must be brought, where such a period has not been laid down by any provision of EU law, the staff members concerned are entitled not to expect a pre-determined limitation period to be imposed on them, but that a reasonable period should be applied, which must be assessed in the light of all the circumstances of the case and, in particular, of the importance of the case for the person concerned, its complexity and the conduct of the parties to the case. It follows, generally, that the concept of a reasonable period cannot be regarded as a specific limitation period and, in particular, that the period of three months laid down in Article 91(3) of the Staff Regulations cannot be applied by analogy as a limitation period to members of staff of the European Investment Bank when they bring an action for annulment of a measure adopted by that bank which adversely affects them.

Consequently, as far as concerns actions for annulment of decisions contained in the salary slips of EIB staff, given that the time-limit for bringing an action against a decision relating to a staff member’s pecuniary status starts to run when he is notified of the salary slip showing that decision, and in view of the uncertainty which consequently surrounds the taking into consideration of any other form of prior information, and the fact that decisions fixing the amount of the performance awards for EIB staff constitute the first measures implementing the new awards scheme established at the end of lengthy discussions with staff representatives, a period of 4 months and 10 days cannot be regarded as unreasonable.

(see paras 64-66)

See:

28 February 2013, C‑334/12 RX-II Arango Jaramillo and Others v EIB, paras 28 to 44

9 July 2013, T‑234/11 P-RENV-RX Arango Jaramillo and Others v EIB, para. 31

3. In the case of an action for annulment of a decision contained in a pay slip relating to a performance award, the argument cannot be upheld that the performance award scheme is a discretionary and uncertain scheme under which staff have no acquired rights, since the discretionary nature of a power is not, in any event, capable of depriving officials and other staff of such a fundamental guarantee as the right to effective judicial protection, but merely limits the intensity of the judicial review by the courts, which may not substitute their assessment for that of the administration.

(see paras 71, 72)

4. As regards the interest which an official or other staff member has in bringing proceedings, a salary slip which gives material form, for the first time, to the implementation of new measures of general application concerning the fixing of the pecuniary rights of an official or other staff member necessarily represents, in regard to its addressee, the adoption of an administrative decision of individual application producing binding legal effects of such a kind as to have a direct and immediate effect on his interests.

(see paras 77-79)

See:

30 September 2010, F‑29/09 Lebedef and Jones v Commission, paras 34 to 36 and the case-law cited therein

5. Where employment contracts are concluded with a European Union body entrusted with public interest responsibilities and authorised to lay down, by regulation, provisions applicable to its staff, the consent of the parties to such a contract is necessarily circumscribed by all manner of obligations deriving from those particular responsibilities and incumbent upon both the management bodies of that body and its staff. Pursuant to Article 31 of its Rules of Procedure, the European Investment Bank is authorised to lay down, by regulation, provisions applicable to its staff. Consequently, the EIB’s relationship with its contract staff is essentially regulatory in nature.

In that respect, the EIB, in order to carry out its public interest responsibilities, has discretion to organise its departments and to fix unilaterally the remuneration of its staff, notwithstanding the legal instruments of a contractual nature on which that employment relationship is based.

(see paras 104, 105, 107)

See:

14 October 2004, C‑409/02 P Pflugradt v ECB, paras 34 to 36

6. As regards the reform of the European Investment Bank’s awards scheme, the fact that the old awards scheme was designed to be discretionary and variable, but the practice followed had de facto conferred on it significant stability, does not mean that the persons concerned acquired a right which precluded reform.

The fact that a European Union body followed a particular policy for a long period does not create, for the persons concerned, a right to retain the benefits which that policy may have brought them. Consequently, the authority is free to make, at any time, such changes to the staff employment rules for the future as it deems to be in the interests of the service, even if they are disadvantageous for staff. That is particularly true where a mere practice is concerned.

Furthermore, it should be noted that budgetary options are among the factors which the administration takes into account in its staff policy. Consequently, the aim of making economies at the expense of staff is not in itself an unlawful reason and does not in itself infringe the administration’s duty to have regard for the welfare of staff. Moreover, changes to the staff’s employment rules are subject only to the condition that they are justified in the interests of the service.

Furthermore, even if staff could claim a legitimate expectation that the previous awards scheme would be maintained or would remain stable, the reform of the scheme was accompanied by a transitional period of five years, which appears to be sufficient.

(see paras 118-120, 134, 139)

See:

17 December 1981, 178/80 Bellardi-Ricci and Others v Commission, para. 19; 17 December 1981, 197 to 200, 243, 245 and 247/80 Ludwigshafener Walzmühle Erling and Others v Council and Commission, para. 40; 11 March 1982, 127/80 Grogan v Commission, para. 34

29 November 2006, T‑135/05 Campoli v Commission, paras 10, 86 and 87

9 October 2007, F‑85/06 Bellantone v Court of Auditors, para. 64; 25 November 2008, F‑145/07 Bosman v Council, para. 41

7. The European Investment Bank possesses a wide discretion to decide on its staff management policy and to determine the detailed rules for implementing that policy. Moreover, when responding to budget concerns the EIB has to take account of economic developments and financial variables, in the context of which it again has a wide discretion. Consequently, the judicial review exercised by the Union judicature in the matter must necessarily be limited. It must therefore confine itself to examining whether the Bank’s assessments are vitiated by a manifest error or whether it has clearly exceeded the bounds of its discretion.

(see paras 161, 162)

See:

9 June 2005, C‑318/03 HLH Warenvertrieb and Orthica, para. 75

16 May 2013, T‑281/11 P Canga Fano v Council, para. 127

29 September 2011, F‑80/10 AJ v Commission, para. 35