JUDGMENT OF THE GENERAL COURT (Appeal Chamber)

18 June 2013

Case T‑645/11 P

Michael Heath

v

European Central Bank (ECB)

(Appeal — Civil service — ECB staff — Pensions — Annual increase — Rate of increase for 2010 — Retroactivity — Right to collective negotiations)

Appeal:      against the judgment of the Civil Service Tribunal (Second Chamber) of 29 September 2011 in Case F‑121/10 Heath v ECB [2011] ECR-SC, seeking to have that judgment set aside.

Held:      The appeal is dismissed. Mr Michael Heath is to bear his own costs and pay those incurred by the ECB in the present proceedings.

Summary

1.      Acts of the institutions — Temporal application — Principle of non-retroactivity — Exceptions — Conditions

2.      Appeals — Grounds — Need for a specific criticism of a point in the reasoning of the Civil Service Tribunal

(Art. 257 TFEU; Statute of the Court of Justice, Annex I, Art. 11; Rules of Procedure of the General Court, Art. 138(1)(c))

3.      Appeals — Grounds — Inadequate or contradictory grounds — Admissibility — Scope of the obligation to state reasons — Extent of the Court’s review of judgments of the Civil Service Tribunal

(Statute of the Court of Justice, Art. 36 and Annex I, Art. 7(1); Rules of Procedure of the Civil Service Tribunal, Art. 79)

4.      Officials — Principles — Legal certainty — Scope — Duty to formulate criteria governing the administration’s discretion — None

5.      Appeals — Grounds — Mistaken assessment of the facts — Inadmissibility — Review by the General Court of the assessment of facts and evidence — Possible only where the clear sense of the evidence has been distorted

(Art. 257 TFEU; Statute of the Court of Justice, Annex I, Art. 11(1))

6.      Appeals — Grounds — Mere repetition of the grounds and arguments presented before the Civil Service Tribunal — Error of law relied on not identified — Inadmissibility — Challenge to the interpretation or application of Union law by the Tribunal — Admissibility

(Art. 257 TFEU; Statute of the Court of Justice, Annex I, Art. 11(1); Rules of Procedure of the General Court, Art. 138(1))

7.      Officials — Staff of the European Central Bank — Representation — Staff Committee — Duty to consult — 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))

8.      Officials — Staff of the European Central Bank — Pensions — Annual increase — Requirement for collective negotiations before decision to increase pensions — None

(Charter of Fundamental Rights of the European Union, Art. 28; Conditions of Employment for Staff of the European Central Bank, Annex III, Art. 17(7))

1.      See the text of the decision.

(see paras 37-38)

See:

98/78 Racke [1979] ECR 69, para. 20; C‑74/00 P and C‑75/00 P Falck and Acciaierie di Bolzano v Commission [2002] ECR I‑7869, para. 119

2.      See the text of the decision.

(see paras 73, 113)

See:

19 March 2010, T‑338/07 P Bianchi v ETF [2010] ECR-SC, para. 59

3.      See the text of the decision.

(see paras 80-81, 97, 118, 122, 141)

See:

C‑120/06 P and C‑121/06 P FIAMM and Others v Council and Commission [2008] ECR I‑6513, para. 91; C‑202/07 P France Télécom v Commission [2009] ECR I‑2369, para. 41

13 December 2011, T‑311/09 P Marcuccio v Commission [2011] ECR-SC, para. 33; 19 March 2012, T‑398/11 P Barthel and Others v Court of Justice [2012] ECR-SC, para. 27 and the case-law cited

4.      See the text of the decision.

(see para. 87)

5.      See the text of the decision.

(see paras 99-101)

See:

C‑8/95 New Holland Ford v Commission [1998] ECR I‑3175, para. 72; C‑551/03 P General Motors v Commission [2006] ECR I‑3173, para. 54; C‑167/04 P JCB Service v Commission [2006] ECR I‑8935, para. 108

T‑252/06 P Beau v Commission [2007] ECR-SC I‑B‑1-13 and II‑B‑1-63, paras 45 to 47

6.      See the text of the decision.

(see paras 132, 148)

See:

T‑253/06 P Chassagne v Commission [2008] ECR-SC I‑B‑1-43 and II‑B‑1-295, paras 54 and 55; T‑404/06 P ETF v Landgren [2009] ECR II‑2841, paras 140 and 141

7.      According to Articles 48 and 49 of the Conditions of Employment for Staff of the European Central Bank, the staff committee must be consulted on all questions of remuneration. It must therefore be consulted before a decision is taken as to a general adjustment of salaries. On the other hand, under those same provisions, the staff committee need only be consulted on questions relating to ‘pension schemes’. It is undoubtedly necessary to consult the committee before rules relating to the pension scheme are laid down or amended, but not before a decision putting those rules into effect is taken, such as a decision as to the annual pension increase, made under Article 17(7) of Annex III to the Conditions of Employment.

(see para. 134)

8.      The right to collective negotiation, enshrined in Article 28 of the Charter of Fundamental Rights of the European Union and Article 11 of the European Convention on Human Rights, is intended to enable negotiations to take place between employer and employees so as to determine working conditions. However, where the rights and duties of employees have already been sufficiently determined by provisions which are applicable and whose validity is not in doubt, the fundamental right does not require such negotiations.

In relation to the annual increase in the pensions of former employees of the European Central Bank, the methodology governing the pension increase is laid down in Article 17(7) of Annex III to the Conditions of Employment for Bank staff. This provides, in a case where the general salary adjustment for a particular year is above inflation, for the governing council to apply the general salary adjustment for indexation purposes if it determines, based on the opinion of the pension plan actuary, that the financial position of the fund so permits. If the financial position of the fund does not so permit, pensions are increased by reference to inflation.

Although the criterion relating to the financial position of the fund is not more specifically defined in Annex III to the Conditions of Employment, the pension scheme in question is a funded scheme under which pension payments are financed, in principle, through core contributions and flexible contributions. Accordingly, the requirement that the financial position of the fund should permit the application of the general salary adjustment is intended to ensure that the pension increase does not jeopardise the financing of the pension plan over the long term. It is in light of that objective that the governing council must assess the financial position of the fund and take its decision as to the pension increase.

Against that background, the existence of the guarantee mechanism set out in Annex III to the Conditions of Employment is not to be taken into account in assessing the financial position of the fund. That mechanism is intended to protect the amounts paid against negative returns on investments, but not against a pension increase which goes beyond what the financial position of the fund allows. Thus the guarantee mechanism does not provide any latitude to the governing council in its assessment of the financial position of the fund.

Furthermore, the proper observance of the methodology laid down in Article 17(7) of Annex III to the Conditions of Employment is subject to review by the Courts. Thus, in a situation where the governing council had not applied the rate of the general salary adjustment to pensions, when the financial position of the fund would have permitted this, its decision can be challenged before the Courts of the European Union.

On that basis, the rights and duties of former employees of the European Central Bank have been sufficiently determined by the methodology laid down in Article 17(7) of Annex III to the Conditions of Employment.

This conclusion is not undermined by the fact that the assessment of the financial position of the fund requires a complex economic assessment and that, in principle, such assessments are subject only to limited review by the Courts.

In that regard, first, the fact that the power of review is limited does not mean that the European Union Courts do not carry out any review. In such a case they must not only establish whether the evidence put forward is factually accurate, reliable and consistent but must also determine whether that evidence contains all the relevant data that must be taken into consideration in appraising a complex situation and whether it is capable of substantiating the conclusions drawn from it.

Second, by virtue of Article 17(7) of Annex III to the Conditions of Employment, the governing council must act on the opinion of the actuary, and thus on the opinion of an expert. The purpose of the expert opinion is to assist the council in assessing the financial position of the fund. It also assists the Courts in reviewing the decision. Where the governing council follows the actuary’s opinion, it takes into account the opinion of an expert who is a third party with respect to the governing council and the staff of the Bank. By contrast, where the governing council decides not to follow the opinion, it is incumbent on it to state the reasons for its divergent assessment.

(see paras 155-163)

See:

T‑201/04 Microsoft v Commission [2007] ECR-SC II‑3601, paras 87 to 89