JUDGMENT OF THE CIVIL SERVICE TRIBUNAL
(First Chamber)

27 September 2011

Case F‑98/09

Sarah Whitehead

v

European Central Bank (ECB)

(Civil service – Staff of the ECB – Annual salary and bonus review – 2008 review – Annual assessment – Criteria for assessment – Staff Committee consultation – Taking account of periods of sick leave – Setting of objectives)

Application:      brought under Article 36.2 of the Protocol on the Statute of the European System of Central Banks and the European Central Bank, annexed to the EC Treaty, in which Ms Whitehead seeks, principally, annulment of the decision of the ECB of 8 January 2009 awarding her, under the Annual Salary and Bonus Review, a salary increase of two points (steps), and compensation for the non‑material damage she suffered, evaluated ex aequo et bono at EUR 10 000.

Held:      The action is dismissed. The applicant is ordered to bear her own costs and to pay those of the ECB.

Summary

1.      Officials – Staff of the European Central Bank – Annual salary and bonus review

(Conditions of Employment for Staff of the European Central Bank, Annex I, Art. 5)

2.      Officials – Staff of the European Central Bank – Annual salary and bonus review – Discretion

Council Directive 91/533; Conditions of Employment for Staff of the European Central Bank, Annex I, Art. 5)

3.      Officials – Actions – Pleas in law – Plea relating to administration’s duty of transparency

4.      Officials – Staff of the European Central Bank – Annual salary and bonus review

(Conditions of Employment for Staff of the European Central Bank, Annex I, Art. 5)

5.      Plea of illegality – Scope – Measures the illegality of which may be pleaded – General measure providing the basis of the contested decision

(Arts 236 EC and 241 EC; Art. 152 EA; Protocol on the Statute of the European System of Central Banks and of the European Central Bank, Art. 36.2)

6.      Union law – Sources – Judgments of the Administrative Tribunal of the International Labour Organisation – Not included

7.      Officials – Staff of the European Central Bank – Representation – Staff Committee – Mandatory consultation – Scope

(Rules of Procedure of the European Central Bank, Art. 15; Conditions of Employment for Staff of the European Central Bank, Arts 48 and 49)

8.      European Central Bank – Powers of the Executive Board – Adoption of internal organisational rules for the Bank – Establishment of guidelines

(Rules of Procedure of the European Central Bank, Art. 11(2))

9.      Officials – Equal treatment and non-discrimination – Obligation to treat officials on sick leave in the same way as those in active service – None

1.      The fact that the Annual Salary and Bonus Review within the European Central Bank is based on a comparison, within a business area, of the contributions of each member of staff to the realisation of the ECB’s tasks does not mean that, in the absence of any specific tool for assessing the individual merits of each member of staff under the ASBR procedure, the ECB is obliged to base its ASBR decisions on the annual appraisal.

Moreover, as the ASBR procedure has no equivalent in the Staff Regulations of Officials, no analogy can be drawn between the principles governing the appraisal of officials of the European Union and those governing the ASBR procedure applicable to ECB members of staff.

(see paras 44, 48)

2.      While the effect of the principle of non-discrimination, the duty of transparency and the obligation to state reasons is that when the European Central Bank exercises its powers it must comply with certain requirements, the effect cannot thereby be that the ECB is compelled to abandon the wide discretion which it has decided to maintain in conducting its policy on awarding individual salary increases and to define in a document the assessment criteria which it intends to use in order to exercise its discretion.

Likewise, while the principle of legal certainty requires the adoption of rules that are sufficiently clear, so that individuals may be able to ascertain unequivocally what their rights and obligations are and may take steps accordingly, that principle does not oblige the ECB to restrict the discretion which it means to exercise in relation to individual salary increases by adopting implementing measures designed to define how it intends to exercise that discretion in the future.

Furthermore, while it is true that the rules relating to salary increases are related to the remuneration to which ECB members of staff are entitled and to that extent are essential aspects of an employment relationship within the meaning of Directive 91/533 on an employer’s obligation to inform employees of the conditions applicable to the contract or employment relationship, the requirements of that directive are not so stringent as to compel the ECB to adopt and publish assessment criteria in respect of the contribution of each employee to the ECB’s tasks.

(see paras 49, 58-60)

See:

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

3.      The duty of transparency does not constitute a principle of European Union law which an applicant can invoke in the absence of a written legal basis. Consequently, not having indicated the legal provision which embodies the duty of transparency on which he relies, the applicant fails to put the Tribunal in a position to assess the scope of his argument.

(see para. 50)

See:

22 May 2007, F‑99/06 López Teruel v OHIM, para. 94

4.      Since the Annual Salary and Bonus Review within the European Central Bank is based on a comparison of the individual contribution of each employee to the tasks of the ECB with those of his or her colleagues in the same business area, the internal provisions relating to the ASBR may cause a difference in treatment of ECB members of staff, but that difference in treatment must be regarded as justified by an objective factor, namely the fact that each business area is responsible for the performance of different tasks. Those provisions are therefore not in breach of the principle of equal treatment.

Further, since the entire staff of the ECB are not considered by the provisions governing the ASBR to form one and the same legal category, a staff member cannot claim that the ECB erred by comparing his contribution to the tasks of the ECB only with the contributions of colleagues in his business area.

(see para. 68)

5.      The objection of illegality is intended to enable applicants to contest, by means of objection, the lawfulness of the applicability of a measure of general application to the issue with which the action is concerned and that measure may have the character of an implementing measure or legislative act, provided that there is a direct connection between the contested decision and the general measure in question. Consequently, the mere fact that an applicant pleads, in his plea in law, that an act of a legislative character is unlawful, does not mean that plea is inadmissible.

Moreover, under the terms of Article 241 EC, the possibility of raising an objection of illegality in relation to a measure of general application is not restricted to a particular period of time. There is no reason not to apply the same rule to actions based on Article 236 EC, Article 152 EA or Article 36.2 of the Protocol on the Statute of the European System of Central Banks and the European Central Bank.

(see paras 73, 74)

See:

15 September 1998, T‑23/96 De Persio v Commission, para. 54

6.      The case-law of the Administrative Tribunal of the International Labour Organisation does not, as such, constitute a source of European Union law and consequently cannot reasonably be relied on in support of an objection of illegality.

(see para. 76)

7.      The budget is not one of the measures whose adoption or amendment is subject to the provisions of Article 49 of the Conditions of Employment for Staff of the European Central Bank, in conjunction with Article 48 of those Conditions of Employment, imposing on the ECB the obligation to consult the Staff Committee. Indeed, the budget is adopted on the basis of Article 15 of the ECB’s Rules of Procedure and not on the basis of the Conditions of Employment or the Staff Rules or a measure related to one of those documents, nor does it relate to a matter covered by Article 48 of the Conditions of Employment, in respect of which the consultation of the Staff Committee is required. Consequently, there is no obligation to consult the Staff Committee when the budgetary envelope allocated to each ASBR in the ECB is decided.

(see para. 89)

8.      Although, under Article 11(2) of the ECB’s Rules of Procedure, the Executive Board has the power to enact the internal organisational rules of the ECB and, in that respect, to adopt salary policy guidelines, it may, however, delegate the drafting of those guidelines to another body and do no more than approve them a posteriori.

The fact that a specific authority alone is competent to adopt a decision does not preclude that authority from being able to instruct another body to give written form to the content of the decision it plans to adopt, provided however that it has the opportunity to amend the text and that the text returns to it for its ratification of the final version.

(see paras 93, 94)

9.      The principle of equal treatment and the principle of non-discrimination as recognised in the European Union oblige the administration not to treat the same situations differently and not to apply the same treatment to different situations, unless that is objectively justified. Given that the question whether or not a situation is identical must be assessed in the light of the conditions governing the applicability of the rule the implementation of which is allegedly the source of unequal treatment or discrimination, it is clear that, as a matter of fact, a person on sick leave is not in the same situation as a person in active service and that, consequently, in terms of European Union law, no general principle requires the administration to consider persons on sick leave as being in the same situation as persons actively at work. Consequently, only when a legal provision requires the administration to treat the situation of a person on sick leave as comparable to that of a person in active service is a person on sick leave justified in claiming the same treatment as a person in active service.

(see para. 108)

See:

11 July 2006, C‑13/05 Chacón Navas, para. 54; 20 January 2009, C‑350/06 and C‑520/06 Schultz-Hoff, para. 27

31 May 2005, T‑284/02 Dionyssopoulou v Council, paras 50 to 52 and the case‑law cited therein; 9 June 2005, T‑80/04 Castets v Commission, para. 30; 29 March 2007, T‑368/04 Verheyden v Commission, para. 61