JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL
(First Chamber)

17 December 2015

Case F‑94/14

Carlos Bowles

v

European Central Bank (ECB)

(Civil service — ECB staff — Members of the Staff Committee — Remuneration — Salary — Additional salary advancement — Eligibility)

Application:      under Article 36.2 of the Protocol on the Statute of the European System of Central Banks and of the European Central Bank, annexed to the EU Treaty and to the FEU Treaty, in which Mr Bowles essentially seeks, first, annulment of the decision by which the European Central Bank (ECB) refused to grant him an additional salary advancement for 2014, and, second, compensation for the material and non-material harm which he considers he has suffered.

Held:      The decision of the Executive Board of the European Central Bank of 25 February 2014 not to grant an additional salary advancement for 2014 to Mr Bowles is annulled. The remainder of the action is dismissed. The European Central Bank is to bear its own costs and is ordered to pay those incurred by Mr Bowles.

Summary

1.      Actions brought by officials — Staff of the European Central Bank — Special appeal — Action directed against a decision rejecting that special appeal — Admissibility

(Conditions of Employment for Staff of the European Central Bank, Art. 41)

2.      Officials — Staff of the European Central Bank — Remuneration — Additional salary advancements — Eligibility conditions — Absolute impossibility for a staff member carrying out staff representation duties throughout the reference period to benefit — Unlawful — Breach of the right to equal treatment

(Charter of Fundamental Rights of the European Union, Arts 20, 21, 27 and 28; European Central Bank, Administrative Circular No 1/2011, Art. 2(3))

1.      As regards an action brought by a member of staff of the European Central Bank containing claims directed against a decision rejecting his special appeal, those claims need not be examined independently since their only effect is to bring before the judicature the acts adversely affecting the applicant against which the application for pre-litigation review was submitted.

(see para. 32)

See:

Judgment of 17 January 1989 in Vainker v Parliament, 293/87, EU:C:1989:8, para. 8

Order of 18 May 2006 in Corvoisier and Others v ECB, F‑13/05, EU:F:2006:35, para. 25

2.      As regards additional salary advancements awarded to members of staff of the European Central Bank whose performance has been assessed as outstanding for two of the three years preceding the decision to award the advancement, in so far as Article 2(3) of Administrative Circular No 1/2011 on Additional Salary Advancements places a staff representative in a discriminatory position because it is absolutely impossible for him to demonstrate a second year of outstanding performance as a result of his full-time activity as a staff representative during the three years in question, that provision is unlawful. In that regard, it cannot reasonably be claimed that the exercise by the person concerned of his right to dispensations from service in order to carry out his duties within the Staff Committee is his personal choice. The choice of being able to claim dispensations from service in order to carry out a term of office as a staff representative is a fundamental right, as is clear from Articles 27 and 28 of the Charter of Fundamental Rights of the European Union.

Moreover, the exercise of the fundamental right to equal treatment, enshrined by Articles 20 and 21 of the Charter, may not be restricted by rules which place staff representatives in an unfavourable and discriminatory position compared with other staff members, where those limitations are unnecessary and do not serve an objective in the public interest or the need to protect the rights and freedoms of others.

Since the situation of a staff representative and that of a staff member are factually different, they may not be treated in the same way, and they may therefore only have applied to them eligibility conditions for the additional salary advancement which take account of the differences in status between staff members and staff representatives, allowing the latter, like any other staff member, to demonstrate a second year of outstanding performance out of a period of three years, even where they choose to carry out duties in the Staff Committee full-time and for more than a year.

(see paras 51-54, 60)

See:

Judgment of 14 September 2010 in Akzo Nobel Chemicals and Akcros Chemicals v Commission, C‑550/07 P, EU:C:2010:512, paras 54 and 55 and the case-law cited therein

Judgment of 2 December 2014 in Migliore v Commission, F‑110/13, EU:F:2014:257, para. 40