JUDGMENT OF THE CIVIL SERVICE TRIBUNAL
(Second Chamber)

29 September 2011

Case F‑121/10

Michael Heath

v

European Central Bank (ECB)

(Civil service – ECB staff – Pension scheme – Pension plan – Annual pension increase – Harmonised index of consumer prices – Opinion of pension plan actuary – Consultation of Staff Committee – Consultation of Oversight Committee – Right to negotiate by collective agreement)

Application:      brought 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 Treaty on European Union and to the Treaty on the Functioning of the European Union, in which Mr Heath seeks annulment of his pension slips for January 2010 and the following months, in so far as they are drawn up on the basis of an annual increase of 0.6% following the 2010 pension adjustment exercise, and, essentially, an order that the European Central Bank (ECB) pay him the difference between the pension increase applied and that to which he should have been entitled, together with the sum of EUR 5 000 for the material damage which he claims to have suffered as a result of the decrease in his purchasing power, and the sum of EUR 5 000 for alleged non-material damage.

Held:      The action is dismissed. The applicant is to bear his own costs and to pay the costs of the European Central Bank.

Summary

1.      Officials – Acts of the administration – Provisional measures – Measures capable of producing legal effects

2.      Officials – Principles – Legal certainty – Scope

3.      Officials – Actions – Pleas in law – Plea challenging a technical opinion on which the contested decision was based – Judicial review – Scope – Limits

4.      Officials – Staff of the European Central Bank – Pensions – Annual increase – Opinion of pension plan actuary

(Conditions of Employment for Staff of the European Central Bank, Annex III, Art. 17(7))

5.      Officials – Staff of the European Central Bank – Representation – Staff Committee – Mandatory consultation – Scope – Annual pension increase – Not included

(Conditions of Employment for Staff of the European Central Bank, Arts 48 and 49 and Annex III, Art. 17(7))

6.      Officials – Staff of the European Central Bank – Representation – Pension plan Oversight Committee – Mandatory consultation – Scope – Annual pension increase – Not included – Right to receive the pension plan actuary’s opinion on the financial situation of the fund – None

(Conditions of Employment for Staff of the European Central Bank, Annex III, Art. 6(8), second para., and Art. 17(7))

7.      Union law – Principles – Fundamental rights – Freedom of association – Scope – Obligation to negotiate by collective agreement – None

(Charter of Fundamental Rights of the European Union, Art. 28)

8.      Officials – Actions – Claim for compensation linked to an application for annulment – Dismissal of the application for annulment – Conditions for admissibility of the claim for compensation

(Staff Regulations of Officials, Arts 90 and 91)

1.      A measure, even if provisional, produces legal effects during the period when it is in force where its adoption is designed to bring about a significant change in the legal position of the persons concerned.

(see para. 66)

2.      While the principle of legal certainty requires the administration, when adopting rules, to draw them up in such a way that they are sufficiently clear, so that their addressees may be able to ascertain unequivocally what their rights and obligations are and may take steps accordingly, that principle does not oblige the administration to restrict its discretion by adopting implementing measures designed to define how it intends to exercise that discretion in the future.

(see para. 88)

See:

14 April 2005, C‑110/03 Belgium v Commission, para. 30

27 September 2011, F‑98/09 Whitehead v ECB, para. 59

3.      In the case of a technical opinion, review by the Union judicature must be confined to ascertaining that it was issued by an expert who was properly consulted, that the opinion is based on facts which are materially correct, that those facts are capable of forming a basis for the expert’s conclusions, and that the opinion contains a statement of reasons enabling the competent body to assess the considerations on which the conclusions it contains were based and to establish a comprehensible link between the findings it contains and the conclusions reached, but that review cannot include whether it was appropriate to take account of one factor rather than another, or to apply one calculation method rather than another, provided that those used are relevant.

(see para. 90)

See:

16 June 2000, T‑84/98 C v Council, para. 43

4.      Regarding the annual pension increase for former employees of the European Central Bank, the pension plan actuary cannot be criticised for not having attached to his opinion for the Executive Board an estimate of the financial situation of the pension fund, or any other document, given that Article 17(7) of Annex III to the Conditions of Employment for Staff of the European Central Bank does not require the pension plan actuary to supply estimated figures for the financial situation of the fund, provided that his opinion contains an adequate statement of reasons in the light of the context in which it was issued to enable the Executive Board to take a decision in full knowledge of the facts.

Similarly, Article 17(7) does not require the pension plan actuary to produce a comparative estimate of the respective costs of applying the rate of the general salary adjustment for ECB staff and applying the Harmonised Index of Consumer Prices for the euro area, where the financial situation of the pension fund is such that only a pension increase corresponding to the lower of the two rates may be envisaged, so that there is no reason to compare the costs of the respective application of each of those two rates.

Furthermore, the mere fact that the actuary’s opinion does not state the reasons on which it is based, which is not required by the provisions of Article 17(7) of Annex III to the Conditions of Employment, does not prove that the Governing Council is not aware of the precise financial position of the pension fund, given that it may, if it wishes, question the pension plan actuary on the subject. Consequently, it may not be inferred from the absence or inadequacy of the statement of reasons for the pension plan actuary’s opinion that the Governing Council is in breach of its duty to have regard for the interests of staff and its duty of sound administration.

(see paras 95, 96, 107)

5.      Of the issues on which the Staff Committee of the European Central Bank must be consulted, Articles 48 and 49 of the Conditions of Employment for Staff of the ECB mention not ‘pensions’ but only ‘pension schemes’, a term which refers to the rules on, in particular, the financing conditions for pension entitlements, the conditions for acquiring pension entitlements, how pensions are paid and how they are adjusted to developments in the cost of living, but without including the measures taken to implement those rules, the particular aim of which is to determine precisely what the annual rate of increase for pensions should be. Consequently, the ECB cannot be criticised for not having consulted the Staff Committee before fixing the pension increase in accordance with Article 17(7) of Annex III to the Conditions of Employment.

(see para. 119)

6.      As regards consultation of the Oversight Committee of the European Central Bank’s pension plan, it does not follow from the provisions of the terms of reference of that committee or from any other document that the committee must be consulted before the adoption of the annual decision on pension increases under Article 17(7) of Annex III to the Conditions of Employment for Staff of the ECB. Likewise, there is no provision of the Oversight Committee’s terms of reference or any other document which requires the Oversight Committee to receive a copy of the opinion of the pension plan actuary concerning the financial position of the fund. Although the Oversight Committee’s terms of reference state in Article 30 that the Oversight Committee is to receive a copy of the plan actuary’s valuation report, it is clear from the overall scheme of the provisions applicable to the pension plan that the valuation report referred to in Article 30 of the Oversight Committee’s terms of reference means the valuation report provided for in the second subparagraph of Article 6(8) of Annex III to the Conditions of Employment, which the plan actuary must draw up at the request of the Plan Administrator in order to assess the value of the pension fund, and not the opinion which the plan actuary is required to produce under the annual pension increase procedure.

(see para. 120)

7.      Neither the provisions of Article 28 of the Charter of Fundamental Rights of the European Union nor those of Article 11 of the European Convention on Human Rights require an employer to conclude collective agreements in the field of wage policy, nor even to introduce a procedure enabling trade unions representing the interests of staff to play a decision-making role in defining and implementing the rules applicable to staff. At the very most Article 6(2) of the European Social Charter encourages, but does not make mandatory, the promotion of ‘machinery for voluntary negotiations between employers or employers’ organisations and workers’ organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements’. As for Article 28 of the Charter of Fundamental Rights and Article 11 of the European Convention on Human Rights, although they enshrine the right to freedom of association, including the right for workers to form trade unions to protect their economic and social interests, their provisions do not include any obligation to introduce a collective bargaining procedure or to confer on those trade unions any joint decision-making power for the purpose of developing conditions of employment for workers.

(see para. 121)

8.      By way of exception to the principle that the dismissal of a claim for annulment entails the rejection of a claim for compensation, where a claim for annulment has been dismissed, a claim for compensation which is closely linked to it may still be upheld if the alleged damage originates in an unlawful aspect of the contested decision which, although not capable of providing a basis for annulling that decision, caused damage to the applicant.

(see paras 129, 130)

See:

11 April 2006, T‑394/03 Angeletti v Commission, para. 164