Case T‑713/14

International and European Public Services Organisation in the Federal Republic of Germany (IPSO)

v

European Central Bank

(ECB — Staff of the ECB — Temporary agency staff — Limit on the maximum length of service of the same agency worker — Action for annulment — Challengeable act — Direct and individual effect — Interest in bringing proceedings — Period allowed for commencing proceedings — Admissibility — Failure to inform and consult the applicant trade union — Non-contractual liability)

Summary — Judgment of the General Court (First Chamber), 13 December 2016

Fundamental rights — Charter of Fundamental Rights of the European Union — Representation — Trade union having a right to consultation and information — Trade union not consulted before adoption of a decision on agency workers — Not permissible

Fundamental rights — Charter of Fundamental Rights of the European Union — Workers’ right to information and consultation within the undertaking — Provision of Directive 2002/14 not in itself sufficient to confer the right on individuals

Actions for annulment — Time-limits — Point from which time starts to run — Decision neither published nor notified to the applicant — Precise knowledge of the content and reasons — Duty to request the whole text of the decision within a reasonable time once its existence is known

Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Decision by the ECB limiting the maximum length of service of the same agency worker — Action by a trade union active in defence of the interests of staff of the ECB — Admissibility

Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Action brought by a trade association set up to protect and represent its members — Admissibility — Conditions

Only measures which produce binding legal effects and are capable of affecting the interests of third parties by bringing about a distinct change in their legal position constitute measures challengeable by an action for annulment. In order to determine whether an act the annulment of which is sought produces such effects, it is necessary to look to its substance, the context in which it was drafted, and the intention of those who drafted them. By contrast, the form in which an act is adopted is in principle irrelevant for assessing the admissibility of an action for annulment. None the less, the General Court may take into consideration the form in which acts the annulment of which is sought are adopted inasmuch as it may help to enable their nature to be identified. Thus, only an act by which its author reaches an unequivocal and definitive position, in a form enabling its nature to be identified, constitutes a decision challengeable by an action for annulment. That is the case with a decision of the Executive Board of the European Central Bank drawing up rules of general application, definitively establishing at least some of the criteria to be followed for the employment of agency workers within the institution, that is, the maximum duration of employment of the same agency worker performing administrative or secretarial tasks. Such a measure has binding legal effects in as much as the ECB cannot, unless the rule is formally amended or repealed, depart from that rule when assessing bids submitted by temporary work agencies in the context of the contract award procedure relating to the institution’s employment of agency workers. (see paras 17, 18, 20, 22, 23)

A measure adopted by an institution which simply reflects the intention of that institution, or of one of its departments, to follow a particular line of conduct in a given field is not an act open to challenge for the purposes of Article 263 TFEU. Such internal guidelines, indicating the general lines along which, pursuant to the relevant provisions, the institution envisages subsequently adopting individual decisions whose legality may be challenged in accordance with the procedure laid down by Article 263 TFEU, have effects only within the administration itself and do not create any right or obligation in respect of third parties. Such acts therefore do not constitute acts adversely affecting any person, against which, as such, an action for annulment can be brought under Article 263 TFEU. (see para. 19)

See the text of the decision. (see paras 44, 46-49)

The mere fact that a trade union representing staff took part in negotiations which led to the adoption of a measure is not sufficient to change the nature of the right of action which, in the context of Article 263 TFEU, it may possess in relation to that measure. However, an association’s action may be declared admissible where it is defending its own interests, as distinct from those of its members, particularly where its position as a negotiator was affected by the contested act, in particular situations in which it occupied a clearly circumscribed position as negotiator which was intimately linked to the actual subject-matter of the decision, thus placing it in a factual situation which distinguished it from all other persons. Concerning an action brought by a trade union against a decision of the Executive Board of the ECB imposing a limitation on the maximum duration of an agency worker’s employment with the ECB, the position of the trade union as a social interlocutor with the ECB in discussions on agency staff, relating in particular to the question of the duration of their employment in the ECB, is sufficient to show that it is individually concerned by the contested act for the purposes of the sixth paragraph of Article 263 TFEU. That status is in fact peculiar to it, within the meaning of the case-law, inasmuch as, of the various trade unions that may be active in defence of the interests of persons employed by or working for the ECB, it was the one which entered into discussions with the ECB precisely on the issues covered by the contested act, which distinguishes it from all other trade unions. Similarly, the trade union is directly concerned by the contested act, within the meaning of the case-law, inasmuch as the act had the immediate effect of affecting its position as social interlocutor in the discussions on agency staff issues, since it denied it the opportunity to take part in and influence the decision-making. (see paras 52, 53, 58, 59)

See the text of the decision. (see paras 63, 64)

See the text of the decision. (see para. 68)

See the text of the decision. (see paras 69-72)

Article 27 of the Charter of Fundamental Rights lays down the right of workers to information and consultation within the undertaking. According to the case-law, those provisions may apply in relations between the EU institutions and their staff. However, according to the actual wording of Article 27 of the Charter of Fundamental Rights, the exercise of the rights laid down in that article is confined to the cases and conditions provided for by European Union law and national laws and practices. It follows that Article 27 of the Charter of Fundamental Rights, which does not lay down any directly applicable rule of law, is not in itself sufficient to confer on individuals an individual right to consultation and information which they may invoke as such. According to the explanations relating to Article 27 of the Charter of Fundamental Rights, which, under the third paragraph of Article 6(1) TEU and Article 52(7) of the Charter of Fundamental Rights, must be given due regard for the interpretation of the Charter, the Union acquis in the field covered by Article 27 of the Charter of Fundamental Rights, laying down the conditions in which that article applies, is constituted, inter alia, by Directive 2002/14 establishing a general framework for informing and consulting employees in the European Community. (see paras 84-86, 88)

See the text of the decision. (see paras 97, 99, 101)

Since directives are addressed to the Member States and not to the EU’s institutions or bodies, the provisions of Directive 2002/14 cannot be treated, as such, as imposing any obligations on the institutions in their relations with their staff. However, the fact that a directive is not, as such, binding on the institutions does not mean that rules or principles laid down in that directive may not be relied on against the institutions, where those rules or principles themselves appear to be merely the specific expression of fundamental treaty rules and general principles directly applicable to the institutions. In a community based on the rule of law, the uniform application of the law is a fundamental requirement and any person subject to the law is subject to the principle of due process of law. Thus, the institutions are required to respect the rules of the FEU Treaty and the general principles of law which apply to them, just as any other person subject to the law. Likewise, a directive may be binding on an institution where the latter, within the scope of its organisational autonomy in particular, has sought to carry out a specific obligation laid down by a directive or in the specific instance where an internal measure of general application itself expressly refers to measures laid down by the Union legislature pursuant to the Treaties. Lastly, the institutions must, in accordance with their duty to act in good faith, take account, in their actions as employer, of the legislation adopted at Union level. (see paras 104-106)

Even though Article 9(c) of the Conditions of Employment of Staff of the European Central Bank reflects the general principle that the uniform application of the law requires the EU institutions to respect the rules of EU law, including directives, and even though a European Union measure must be interpreted, as far as possible, in conformity with primary law as a whole, it does not indicate an undertaking by the ECB to carry out a specific obligation, in particular an obligation to inform or consult workers’ representatives, as provided for in Directive 2002/14. (see para. 111)

As regards the right to consultation and information of a trade union granted by the ECB under a framework agreement whereby that right is designed to provide an opportunity for the trade union to influence decision-making, 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, but it must afford those concerned, through a representative of their interests, an opportunity to be heard prior to the adoption or amendment of acts of general application which concern them, in particular by having access to all relevant information throughout the process of adopting such acts, the objective being to enable a trade union such as the applicant to participate in the consultation process as fully and effectively as possible. Consequently, unless it is to undermine the effectiveness of the obligation to consult, the administration must comply with that obligation whenever consultation of workers’ representatives is such as to have an influence on the substance of the measure to be adopted. (see paras 146, 147)

By adopting a decision definitively fixing certain criteria to be followed when employing agency workers in the ECB without first involving a trade union having the right to consultation and information, even though the subject-matter of the measure came within the subject-matter of discussions in a working group in which the trade union participated, and without awaiting the working group’s report, the ECB fails to comply with the trade union’s rights to be informed and consulted, which form part of its rights and powers as the trade union representing the persons concerned, in breach of Article 27 of the Charter of Fundamental Rights, defined by Directive 2002/14 and implemented by the framework agreement as extended to cover agency staff by the creation of the working group. (see para. 148)