JUDGMENT OF THE CIVIL SERVICE TRIBUNAL
(Second Chamber)

29 September 2011

Case F‑114/10

Carlos Bowles, Emmanuel Larue

and

Sarah Whitehead

v

European Central Bank (ECB)

(Civil service – Staff of the ECB – General salary adjustment – Method of calculation – Provisional data – Economic and financial crisis – Special circumstances – Act adversely affecting an official – Pay slip – Provisional act)

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 the Treaty on the Functioning of the European Union, in which Mr Bowles, Mr Larue and Ms Whitehead seek annulment of their pay slips for January 2010 and the following months in so far as they show a general adjustment to salaries of 2% for 2010, together with an order that the ECB pay them damages corresponding to an increase of 0.1% in their salary and in all other derived entitlements from January 2010, in addition to default interest, as well as compensation for the loss of purchasing power, provisionally fixed ex æquo et bono at EUR 5 000 for each applicant, and compensation for their non-material loss, calculated ex æquo et bono at EUR 5 000 for each applicant.

Held:      The ECB’s decisions to increase the applicants’ pay by 2% from 1 January 2010, as shown in their pay slips for January 2010 and the following months, are annulled. The remainder of the action is dismissed. The ECB is to bear all the costs.

Summary

1.      Officials – Staff of the European Central Bank – Actions – Act adversely affecting an official – Definition

(Protocol on the Statute of the European System of Central Banks and of the European Central Bank, Art. 36; Conditions of Employment for Staff of the European Central Bank, Art. 13)

2.      Officials – Staff of the European Central Bank – Remuneration – Method of calculation for general salary adjustment – Administration's discretion – Limits

3.      Officials – Actions – Actions for damages – Annulment of the illegal act in dispute – Whether appropriate reparation for non-material damage

1.      Although pay slips, as such, do not possess the characteristics of a measure adversely affecting the officials concerned, they nevertheless represent in financial terms the substance of individual legal decisions taken by the administration in order to apply measures of a general nature adopted in relation to remuneration.

A provisional measure relating to remuneration adopted by the Executive Board of the European Central Bank is capable of having an adverse effect if its adoption is intended to produce legal consequences likely to affect the interests of the persons concerned by bringing about a distinct change in their legal position for the period in which it applies.

(see paras 42, 50)

See:

24 June 2008, F‑116/05 Cerafogli and Poloni v ECB, para. 51; 28 October 2010, F‑96/08 Cerafogli v ECB, paras 33 and 34 and the case-law cited therein

2.      The note of 11 June 2008 entitled ‘ECB general salary adjustment methodology for the period January 2009-December 2011’ does not give the European Central Bank the option, unless the final outcome of the method it describes is not in line with its policy stance on wage moderation, of disregarding provisional data such as that provided by Eurostat and made available by the Commission on 31 October 2009 concerning wage trends within the ‘European Union institutions and bodies’ comparator group. On the contrary, one of the footnotes in the note of 11 June 2008 states that, as data for the European [Union] institutions is approved by the Council at the end of December each year, such provisional data will be accepted. Consequently, the European Central Bank should have taken account of the rate of 3.6% which was the latest made available by the Commission on 31 October 2009, even though the rate of adjustment of remuneration for officials and other servants of the Union ultimately adopted by the Council was different.

In order not to render nugatory the special procedure allowing the Executive Board to depart from the outcome of the method for calculating the general salary adjustment where that method runs counter to the European Central Bank’s wage moderation policy, and in the absence of any other special or exceptional provisions, it cannot be inferred from the note of 11 June 2008 that its spirit and purpose authorised the European Central Bank to depart from the clear and unequivocal terms of the footnote in the event of a serious economic crisis.

(see paras 67, 70)

3.      The annulment of an unlawful measure may constitute, in itself, appropriate and, in principle, sufficient compensation for all non-material damage which that measure may have caused, unless the applicant shows that he has suffered non-material damage which is separable from the unlawfulness which is the basis for the annulment and which is incapable of being entirely repaired by that annulment.

(see para. 81)

See:

7 February 1990, C‑343/87 Culin v Commission, paras 27 to 29

9 December 2010, T‑526/08 P Commission v Strack, para. 58