JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (Full Court)

24 June 2008

Case F-15/05

Carlos Andres and Others

v

European Central Bank (ECB)

(Civil service – ECB staff – Remuneration – Consultation of ECB Staff Committee – Method of calculating the annual adjustment in remuneration – Compliance with a judgment of the Community judicature – Retroactivity)

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 EC Treaty, in which Mr Andres and eight other applicants seek, in particular, the annulment of their salary statements for the month of July 2004, in so far as they contain a salary increase fixed in accordance with an allegedly unlawful method of annual salary adjustment and that increase does not have retroactive effect with regard to the years 2001, 2002 and 2003, and, secondly, the award of damages.

Held: The action is dismissed. The parties are to bear their own costs.

Summary

1.      Officials – Staff of the European Central Bank – Representation – Staff Committee – Consultation

(Decision ECB/2004/3, Art. 4(4); Conditions of Employment for Staff of the European Central Bank, Arts 45 and 46)

2.      Officials – Staff of the European Central Bank – Representation – Staff Committee – Consultation

(Conditions of Employment for Staff of the European Central Bank, Arts 45 and 46)

3.      Officials – Actions – Judgment annulling a measure – Effects – Obligation to comply

(Art. 233 EC)

1.      It follows from Article 46 of the Conditions of Employment for Staff of the European Central Bank that the Staff Committee must be consulted prior to any change in those Conditions of Employment, the Staff Rules and related matters, including those connected with remuneration. Taking that article in particular as its basis, the Memorandum of Understanding on Relations between the Executive Board and the Staff Committee of the ECB gives concrete expression to the right of the Staff Committee to be consulted and lays down, in particular, the procedure to be followed, beginning with the obligation for the ECB to provide complete information. The right of workers to information and consultation is a general principle of employment law, in the light of which the relevant provisions of the Memorandum of Understanding must be interpreted.

The scope of the ECB’s obligation to provide information for the Staff Committee must be assessed in the light of the nature of the source data. Thus, in the case of data supplied by third parties for the purposes of the annual adjustment of the salaries of staff of the ECB, concerning the salary increase percentages and the numbers of employees of the national central banks, the Community institutions and certain international organisations, the ECB may comply with the authorship rule laid down in Article 4(4) of Decision ECB/2004/3 on public access to European Central Bank documents and refuse to disclose the data to all the members of the Staff Committee. The ECB satisfies its obligation to provide information where it gives access to those data to representatives duly appointed by the Staff Committee following a proposal to that effect from that Committee.

(see paras 58-60, 64-65, 67-68)

See:

T-192/99 Dunnett and Others v EIB [2001] ECR II‑813, para. 105

2.      Under the procedure for consulting the Staff Committee on the annual adjustment of the salaries of ECB staff, the fact that ‘unofficial’ meetings were held with representatives duly appointed by the Staff Committee for the purposes of the consultation and not with the full Staff Committee does not constitute an irregularity where the Staff Committee was kept informed of the results of those meetings and relations between the Staff Committee and the ECB were based on a high degree of mutual trust and on open communication, a situation such as to justify the informality of certain meetings .

(see paras 77-81)

3.      When compliance with a judgment annulling a measure poses special difficulties, the institution concerned may take any decision which is such as to compensate fairly for the disadvantage resulting for the persons concerned from the annulled decision. In that context, the administration may establish a dialogue with them with a view to seeking to reach an agreement offering them fair compensation for the illegality of which they were victims.

In the case of compliance with a judgment declaring unlawful the procedure for adjusting the salaries of the ECB staff for a particular year because of the failure to consult the Staff Committee in a regular and appropriate manner, the adoption of a compromise consisting, first, of extending the consultation to subsequent years when it was also not carried out, and, second, of extending the salary increases resulting from the consultation to all the staff and not only to the applicants, constitutes a fair and reasonable solution, even if special difficulties prevent the increases decided from being given retroactive effect.

(see paras 121, 132-136)

See:

T-91/95 De Nil and Impens v Council [1996] ECR-SC I‑A‑327 and II‑959, para. 34; T-81/96 Apostolidis and Others v Commission [1997] ECR-SC I‑A‑207 and II‑607, para. 42; T-177/97 Simon v Commission [2000] ECR-SC I‑A‑75 and II‑319, para. 23