JUDGMENT OF THE GENERAL COURT (Eighth Chamber)
12 December 2019 (*)
(Civil service — Reform of the Staff Regulations and of the CEOS which entered into force on 1 January 2014 — Regulation (EU, Euratom) No 1023/2013 — Solidarity levy applicable from 1 January 2014 — Suspension of the application of the method for updating remuneration for 2013 and 2014)
In Case T‑527/16,
Margarita Tàpias, residing in Wavre (Belgium), represented by L. Levi and N. Flandin, lawyers,
applicant,
v
Council of the European Union, represented by M. Bauer and R. Meyer, acting as Agents,
defendant,
supported by
European Parliament, represented by E. Taneva and M. Ecker, acting as Agents,
intervener,
APPLICATION pursuant to Article 270 TFEU for annulment of the decision determining the applicant’s remuneration for January 2014, as given material form in the payslip for that month issued to her on 14 January 2014, allegedly the first payslip in which Article 65(4) and Article 66a of the Staff Regulations, as amended by Article 1(44) and (46) of Regulation (EU, Euratom) No 1023/2013 of the European Parliament and of the Council of 22 October 2013 (OJ 2013 L 287, p. 15), were applied to her, providing for the suspension of the application of the method for updating remuneration for 2013 and 2014 and the introduction of a solidarity levy from 1 January 2014, respectively,
THE COURT (Eighth Chamber),
composed of A.M. Collins, President, M. Kancheva (Rapporteur) and G. De Baere, Judges,
Registrar: M. Marescaux, Administrator,
having regard to the written part of the procedure and further to the hearing on 28 March 2019,
gives the following
Judgment
Background to the dispute
1 The applicant, Ms Margarita Tàpias, is an official of the Council of the European Union.
2 The Staff Regulations of Officials of the European Union (‘the Staff Regulations’) and the Conditions of Employment of Other Servants of the European Union (‘CEOS’) are annexed to Regulation No 31 (EEC), 11 (EAEC), laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Economic Community and the European Atomic Energy Community (OJ, English Special Edition, Series I Volume 1959-1962, p. 135).
3 The Staff Regulations and the CEOS have been amended on many occasions since their adoption, including by Regulation (EU, Euratom) No 1023/2013 of the European Parliament and of the Council of 22 October 2013 (OJ 2013 L 287, p. 15).
4 In particular, Article 1(44) and (46) of Regulation No 1023/2013 amended Articles 65 and 66a of the Staff Regulations.
5 In the version prior to the entry into force of Regulation No 1023/2013, Article 65 of the Staff Regulations provided as follows:
‘1. The Council shall each year review the remuneration of the officials and other servants of the Union. This review shall take place in September in the light of a joint report by the Commission based on a joint index prepared by the Statistical Office of the European Union in agreement with the national statistical offices of the Member States; the index shall reflect the situation as at 1 July in each of the countries of the Union.
During this review the Council shall consider whether, as part of economic and social policy of the Union, remuneration should be adjusted. Particular account shall be taken of any increases in salaries in the public service and the needs of recruitment.
2. In the event of a substantial change in the cost of living, the Council shall decide within two months what adjustments shall be made to the weightings, and if appropriate to apply them retrospectively.
3. For the purposes of this Article, the Council shall act by a qualified majority on a proposal from the Commission as provided in Article 16(4) and (5) of the Treaty on European Union.’
6 Article 65 of the Staff Regulations, as amended by Article 1(44) of Regulation No 1023/2013, now provides as follows:
‘1. The remuneration of the officials and other servants of the European Union shall be updated every year, taking into account the economic and social policy of the Union. Particular account shall be taken of any salary increases in the civil service of the Member States and of recruitment needs. The update of the remuneration shall be implemented in accordance with Annex XI. That update shall take place before the end of each year in the light of a report by the Commission based on statistical data prepared by the Statistical Office of the European Union in agreement with the national statistical offices of the Member States; the statistical data shall reflect the situation as at 1 July in each of the Member States. That report shall contain data pertaining to the budgetary impact of remuneration and pensions of Union officials. It shall be transmitted to the European Parliament and to the Council.
The amounts referred to in the second and third paragraphs of Article 42a, Articles 66 and 69, Articles 1(1), 2(1), 3(1) and (2), 4(1), 7(2), 8(2), 10(1) of Annex VII and Article 8(2) of Annex XIII, and in the former Article 4a of Annex VII to be updated in accordance with Article 18(1) of Annex XIII, the amounts referred to in Article 24(3), the second subparagraph of Article 28a(3), Articles 28a(7), 93, 94, the second subparagraph of Article 96(3) and Articles 96(7), 133, 134 and 136 of the Conditions of Employment of Other Servants, the amounts referred to in the first subparagraph of Article 1(1) of Council Regulation (ECSC, EEC, Euratom) No 300/76 [of 9 February 1976 determining the categories of officials entitled to allowances for shift work, and the rates and conditions thereof (OJ 1976 L 38, p. 1)] and the coefficient for the amounts referred to in Article 4 of Council Regulation (EEC, Euratom, ECSC) No 260/68 [of 29 February 1968 laying down the procedure and the conditions for applying the tax for the benefit of the European Communities (OJ, English Special Edition, Series I Volume 1968(I), p. 37)] shall be updated annually in accordance with Annex XI. The Commission shall publish the updated amounts within two weeks after the update in the C series of the Official Journal of the European Union for information purposes.
2. In the event of a substantial change in the cost of living, the amounts referred to in paragraph 1 and the weightings referred to in Article 64 shall be updated in accordance with Annex XI. The Commission shall publish the updated amounts and weightings within two weeks after the update in the C series of the Official Journal of the European Union for information purposes.
3. The amounts referred to in paragraph 1 and the weightings referred to in Article 64 shall be understood as amounts and weightings the actual value of which at a given point in time is subject to update without intervention of another legal act.
4. Without prejudice to Article 3(5) and (6) of Annex XI, no update provided for under paragraphs 1 and 2 shall be made in the years 2013 and 2014.’
7 In the version prior to the entry into force of Regulation No 1023/2013, Article 66a of the Staff Regulations provided as follows:
‘1. By way of derogation from Article 3(1) of Regulation (EEC, Euratom, ECSC) No 260/68 of the Council of 29 February 1968 laying down the conditions and procedure for applying the tax for the benefit of the European Communities …, a temporary measure regarding remuneration paid by the Union to staff in active employment, to be known as the “special levy”, shall be applied from 1 May 2004 to 31 December 2012.
2. The rate of this special levy, which shall apply to the base defined in paragraph 3, shall be as follows:
from 1.5.2004 to 31.12.2004 | 2.50% |
from 1.1.2005 to 31.12.2005 | 2.93% |
from 1.1.2006 to 31.12.2006 | 3.36% |
from 1.1.2007 to 31.12.2007 | 3.79% |
from 1.1.2008 to 31.12.2008 | 4.21% |
from 1.1.2009 to 31.12.2009 | 4.64% |
from 1.1.2010 to 31.12.2010 | 5.07% |
from 1.1.2011 to 31.12.2012 | 5.50%. |
3. (a) The base for the special levy shall be the basic salary used to calculate remuneration, minus:
(i) social security and pension contributions and the tax, before special levy, payable by an official in the same grade and step without dependants within the meaning of Article 2 of Annex VII, and
(ii) an amount equal to the basic salary of an official in grade 1, step 1.
(b) The components used to determine the base for the special levy shall be expressed in euro and weighted at 100.
4. The special levy shall be deducted monthly at source; the proceeds shall be entered as revenue in the general budget of the European Union.’
8 Article 66a of the Staff Regulations, as amended by Article 1(46) of Regulation No 1023/2013, now provides as follows:
‘1. By way of derogation from Article 3(1) of Regulation (EEC, Euratom, ECSC) No 260/68 and in order to take account, without prejudice to Article 65(3), of the application of the method for updating the remuneration and pensions of officials, a temporary measure regarding remuneration paid by the Union to staff in active employment, to be known as the “solidarity levy”, shall be applied from 1 January 2014 to 31 December 2023.
2. The rate of this solidarity levy, which shall apply to the base defined in paragraph 3, shall be 6%. The rate shall however be 7% for officials in grade AD 15, step 2, and above.
3. (a) The base for the solidarity levy shall be the basic salary used to calculate remuneration, minus:
(i) social security and pension contributions and the tax, before solidarity levy, payable by an official in the same grade and step without dependants within the meaning of Article 2 of Annex VII, and
(ii) an amount equal to the basic salary of an official in grade AST 1, step 1.
(b) The components used to determine the base for the solidarity levy shall be expressed in euro and weighted at 100.
4. The solidarity levy shall be deducted monthly at source; the proceeds shall be entered as revenue in the general budget of the European Union.’
9 In accordance with Article 3(1) of Regulation No 1023/2013, that regulation entered into force on 1 November 2013. Under Article 3(2) of the regulation, the provisions thereof were to apply from 1 January 2014, except for Article 1(44) and Article 1(73)(d), which were to apply from the date of entry into force of the regulation.
10 On 14 January 2014, the applicant received her payslip for January 2014.
11 On 1 April 2014, the applicant lodged a complaint in respect of her payslip for January 2014 with the Council, in its capacity as the appointing authority, on the ground that that payslip constituted (i) the first express decision to apply a solidarity levy to her from 1 January 2014 to 30 June 2015, whereas the application of the method for adjusting remuneration had been suspended for that period and (ii) an implied decision not to apply to her remuneration an annual adjustment for the period from 1 January 2014 to 30 June 2015.
12 The Council rejected the applicant’s complaint by express decision of 17 July 2014.
Procedure and forms of order sought
13 The applicant brought the present action, registered as Case F‑121/14, by application lodged at the Registry of the Civil Service Tribunal of the European Union on 27 October 2014.
14 By order of 10 December 2014, the President of the Third Chamber of the Civil Service Tribunal decided, in accordance with Article 42(1)(a) of the Rules of Procedure of the Civil Service Tribunal, to suspend the proceedings in the present case until the decision closing the proceedings in Case T‑75/14, USFSPEI v Parliament and Council, became final.
15 By document lodged at the Registry of the Civil Service Tribunal on 8 January 2015, the European Parliament sought leave to intervene in the present proceedings in support of the Council.
16 On 2 September 2016, in accordance with Article 3 of Regulation (EU, Euratom) 2016/1192 of the European Parliament and of the Council of 6 July 2016 on the transfer to the General Court of jurisdiction at first instance in disputes between the European Union and its servants (OJ 2016 L 200, p. 137), Case F‑121/14, which was pending before the Civil Service Tribunal on 31 August 2016, was transferred to the General Court and renumbered Case T‑527/16.
17 On 19 January 2018, the judgment of 16 November 2017, USFSPEI v Parliament and Council (T‑75/14, EU:T:2017:813), having become final, the proceedings in the present case were resumed.
18 On 30 April 2018, the Council lodged its defence.
19 By decision of 14 May 2018, the President of the Fifth Chamber of the General Court granted the Parliament leave to intervene.
20 The applicant lodged a reply on 5 July 2018.
21 The Parliament lodged its statement in intervention on 3 July 2018. The applicant submitted her observations on the statement in intervention on 21 August 2018.
22 The Council lodged a rejoinder on 3 September 2018.
23 Following a change in the composition of the Chambers of the General Court, pursuant to Article 27(5) of the Rules of Procedure of that court, the case was reallocated to the Eighth Chamber to which the Judge-Rapporteur was assigned.
24 The parties presented oral argument and answered questions put to them by the Court at the hearing on 28 March 2019.
25 By order of 14 June 2019, the Court decided, in accordance with Article 113 of the Rules of Procedure, to reopen the oral part of the procedure.
26 By an initial measure of organisation of procedure adopted on 14 June 2019 under Article 89 of the Rules of Procedure, the Court requested the parties to reply to a question. The parties replied to that question within the prescribed time limits. On 24 July 2019, the Court adopted a further measure of organisation of procedure by which it invited the parties to state their views on their respective responses to the earlier measure of organisation of procedure. The parties replied within the prescribed time limits.
27 By decision of the President of the Eighth Chamber of the Court of 9 September 2019, the oral part of the procedure was again closed.
28 The applicant claims that the Court should:
– ‘[annul] the express decision applying a solidarity levy from 1 January 2014 to 30 June 2015, whereas the remuneration adjustment was suspended for the period from 1 January 2014 to 30 June 2015; and
– the implied decision not to apply an annual adjustment to the applicant’s remuneration for a period from 1 January 2014 to 30 June 2015;
both decisions having come to light for the first time in the applicant’s payslip for January 2014, as notified on 14 January 2014;
– in so far as necessary, [annul] the decision of 17 July 2014 rejecting the complaint;
– [order] the [Council] to pay all the costs’.
29 The Council, supported by the Parliament, contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
Law
Admissibility
30 It should be noted that, according to settled case-law, the periods for lodging complaints and bringing actions referred to in Articles 90 and 91 of the Staff Regulations are matters of public policy and cannot be left to the discretion of the parties or the Court, which must ascertain, of its own motion if need be, once the parties have been questioned in writing, whether they have been complied with. Those periods meet the requirement of legal certainty and the need to avoid any discrimination or arbitrary treatment in the administration of justice (see, to that effect, judgment of 18 December 2008, Lofaro v Commission, T‑293/07 P, EU:T:2008:607, paragraph 28 and the case-law cited).
31 The Court must therefore examine of its own motion whether the complaint lodged by the applicant on 1 April 2014 was lodged within the 3-month period referred to in Article 90(2) of the Staff Regulations. For that purpose, the Court must determine whether the act affected the applicant adversely within the meaning of Article 90(2) of the Staff Regulations.
32 The applicant claims that the decision determining her payslip for January 2014 constitutes an act adversely affecting her within the meaning of Article 90(2) of the Staff Regulations, in so far as that decision is the first time that Article 65(4) of the Staff Regulations, which suspends the application of the method for adjusting remuneration provided for in Annex XI to the Staff Regulations, and Article 66a of the Staff Regulations, which reintroduces a solidarity levy on the salaries of officials and other servants from 1 January 2014 to 31 December 2023, as amended by Article 1(44) and (46) of Regulation No 1023/2013, were applied to her. In response to the measure of organisation of procedure of the Court of 24 July 2019, the applicant stated that Article 65(4) of the Staff Regulations, which provides that there would be no adjustment for 2013 and 2014, left the Commission no discretion in that regard. The applicant submits that the payslip for January 2014 constitutes the application of that 2-year remuneration suspension to her. Accordingly, it was definitively established that the applicant’s remuneration would not be updated in January 2014 for 2013 and 2014 as of the entry into force of the Staff Regulations, as amended by Regulation No 1023/2013.
33 In that regard, the Court has consistently held that an act adversely affecting a person, for the purposes of Article 90(2) and Article 91(1) of the Staff Regulations, is one which produces binding legal effects such as to have a direct and immediate effect on the applicant’s interest by significantly altering his or her legal position (see judgment of 30 September 2010, Lebedef and Jones v Commission, F‑29/09, EU:F:2010:120, paragraph 31 and the case-law cited).
34 It must therefore be ascertained whether an action brought in respect of the decision determining the applicant’s remuneration for January 2014, as given material form in the payslip issued for that month, meets the requirements of Articles 90 and 91 of the Staff Regulations.
35 It is to be noted that a payslip, by its nature and purpose, does not have the characteristics of an act adversely affecting an official, since it merely expresses in financial terms the effect of earlier administrative decisions concerning the official’s legal and personal situation (judgments of 23 April 2008, Pickering v Commission, F‑103/05, EU:F:2008:45, paragraph 72, and of 23 April 2008, Bain and Others v Commission, F‑112/05, EU:F:2008:46, paragraph 73). However, in so far as it clearly reveals the existence and the content of an administrative decision of individual application, which had hitherto not been disclosed, provided that it had not been formally notified to the official concerned, the payslip, containing the statement of pecuniary rights, may be regarded as an act adversely affecting the official concerned and capable of forming the subject matter of a complaint and, where necessary, an action. In those circumstances, the communication of the payslip has the effect of causing time to begin to run for the purposes of lodging a complaint and bringing an action in respect of the administrative decision adopted with respect to the official concerned and reflected in the payslip (see judgment of 30 September 2010, Lebedef and Jones v Commission, F‑29/09, EU:F:2010:120, paragraph 33 and the case-law cited).
36 The same applies when the payslip gives material form, for the first time, to the implementation of a new act of general application concerning the fixing of pecuniary rights, such as: a decision amending the method used in calculating travel expenses; a decision amending a scale of parental contributions for nursery services; a regulation amending correction coefficients; a regulation adjusting the amount of remunerations; or a regulation introducing an exceptional crisis levy or a temporary contribution (see, to that effect, judgment of 30 September 2010, Lebedef and Jones v Commission, F‑29/09, EU:F:2010:120, paragraph 34 and the case-law cited).
37 In the latter situations, the first payslip following the entry into force of an act of general application altering the pecuniary rights of an abstract category of officials necessarily represents, in regard to its addressee, the adoption of an administrative decision of individual application producing mandatory legal effects of such a kind as to have a direct and immediate effect on the interests of the official concerned. Thus, even on the assumption that it might be considered that a new administrative decision of individual application is adopted every month by the appointing authority as to the determination of the official’s pecuniary rights and is reflected in the corresponding payslip, those successive decisions would merely confirm the first decision which significantly altered the official’s legal situation in application of the new measure of general application (judgment of 30 September 2010, Lebedef and Jones v Commission, F‑29/09, EU:F:2010:120, paragraph 35).
38 Consequently, an official who failed, within the periods prescribed for submitting a complaint and bringing an action, to challenge the payslip giving material form for the first time to the implementation of a measure of general application determining pecuniary rights cannot validly, after those periods have lapsed, challenge the subsequent payslips by invoking against them the same illegality as that vitiating the first payslip (see judgment of 30 September 2010, Lebedef and Jones v Commission, F‑29/09, EU:F:2010:120, paragraph 36 and the case-law cited).
39 In the present case, the applicant submits that the payslip for January 2014, which was issued to her on 14 January 2014, revealed to her for the first time since the entry into force of Regulation No 1023/2013, that, first, under Article 65(4) of the Staff Regulations, her remuneration had not been subject to the annual adjustment due to the suspension for 2013 and 2014 of the method provided for in Annex XI to the Staff Regulations and, second, her remuneration had been affected by a solidarity levy, under Article 66a of the Staff Regulations.
40 In that regard, it is clear from Article 65(1) of the Staff Regulations, as amended by Article 1(44) of Regulation No 1023/2013, that the remuneration of the officials and other servants of the European Union are to be updated every year before the end of each year in accordance with Annex XI to the Staff Regulations.
41 It should, however, be noted that, according to Article 65(4) of the Staff Regulations, introduced by Article 1(44) of Regulation No 1023/2013, ‘no update provided for under paragraphs 1 and 2 shall be made in the years 2013 and 2014’.
42 Under Article 3(2) of Regulation No 1023/2013, Article 1(44) of Regulation No 1023/2013, which amended Article 65 of the Staff Regulations, was applicable as of the date of the entry into force of that regulation, namely the third day following its publication in the Official Journal of the European Union, that is, on 1 November 2013.
43 It follows that, in accordance with the case-law cited in paragraphs 35 to 37 above, the first payslip following the entry into force of the act of general application at issue, namely the provision laying down that the method for the annual adjustment of remuneration and pensions for 2013 and 2014 would not be applied, was that of December 2013. The decision determining the applicant’s remuneration for January 2014, which was given material form in her payslip of that month, did not therefore constitute the first application to the applicant of Article 65 of the Staff Regulations, as amended by Article 1(44) of Regulation No 1023/2013.
44 It must therefore be concluded that the payslip for January 2014 did not adversely affect the applicant in that Article 65(4) of the Staff Regulations, introduced by Article 1(44) of Regulation No 1023/2013, was not applied to her for the first time. It should be noted, in accordance with the case-law cited in paragraph 38 above, that the applicant failed, within the periods prescribed for submitting a complaint and bringing an action, to challenge the payslip giving material form for the first time to the application of that provision to her, namely the payslip for December 2013. It follows that the present action is inadmissible in so far as it seeks the annulment of the decision determining the applicant’s remuneration for January 2014 in so far as it is alleged to have applied Article 65(4) of the Staff Regulations, introduced by Article 1(44) of Regulation No 1023/2013, to her for the first time, that decision merely confirming the decision which determined her remuneration for December 2013 in which that provision was applied to her for the first time and became final. The second head of claim of the application must therefore be held to be inadmissible.
45 However, it should be noted that the applicant’s payslip for January 2014 constituted the first application of Article 66a of the Staff Regulations, as amended by Article 1(46) of Regulation No 1023/2013 to her and, to that extent, constitutes an act adversely affecting the applicant. That conclusion is clear from the wording of that provision and from the fact that the applicant’s payslip for January 2014, which the applicant provided in an annex to her application, refers to the ‘special levy’ provided for in that provision.
46 Since the applicant has lodged her complaint in respect of her payslip for January 2014 within the 3-month period prescribed by Article 90(2) of the Staff Regulations, it must be held that the present action is admissible in so far as it seeks annulment of the decision determining the applicant’s remuneration for January 2014 which applied Article 66a of the Staff Regulations, as amended by Article 1(46) of Regulation No 1023/2013, to her for the first time. The first head of claim of the application is therefore admissible.
Substance
47 As a preliminary matter, it should be made clear that, in support of her action, the applicant relies solely on a plea of illegality under Article 277 TFEU, by claiming that Regulation No 1023/2013 does not apply in so far as it provides first for remuneration to be suspended for 2 years whilst applying a solidarity levy on such remuneration for the period between 1 January 2014 and 30 June 2015.
48 The applicant claims that since Article 65(4) and Article 66a of the Staff Regulations are provisions of general application and were applied to her for the first time by the decision determining her payslip for January 2014, there is a direct or at least indirect legal connection between that individual decision and those provisions so that she is entitled to rely on a plea of illegality under Article 277 TFEU.
49 In that regard, it should be noted that Article 277 TFEU provides that in proceedings in which the legality of a regulation referred to in that provision is at issue, any party may plead, in particular, in support of an action against an implementing measure, the grounds specified in the second paragraph of Article 263 TFEU, even after the period in which to bring an action in respect of that regulation has lapsed. It is settled case-law that that indirect remedy is the expression of a general principle which ensures that every person has or will have had the opportunity to challenge an EU legal act adversely affecting him or her (judgments of 6 March 1979, Simmenthal v Commission, 92/78, EU:C:1979:53, paragraph 36; of 19 January 1984, Andersen and Others v Parliament, 262/80, EU:C:1984:18, paragraph 6; and of 10 July 2003, Commission v ECB, C‑11/00, EU:C:2003:395, paragraphs 74 to 78). The rule laid down in Article 277 TFEU is evidently applicable in proceedings brought before the Court under Article 270 TFEU (judgments of 4 October 2018, Tataram v Commission, T‑546/16, not published, EU:T:2018:644, paragraph 32, and of 30 September 2010, Lebedef and Jones v Commission, F‑29/09, EU:F:2010:120, paragraph 29).
50 However, it also follows from the case-law that the possibility provided by Article 277 TFEU of invoking the inapplicability of a regulation does not constitute an independent right of action and may only be sought indirectly, so that where there is no right to bring the main action or where the main action is inadmissible the plea of inadmissibility must also be declared inadmissible (judgments of 4 October 2018, Tataram v Commission, T‑546/16, not published, EU:T:2018:644, paragraph 33, and of 30 September 2010, Lebedef and Jones v Commission, F‑29/09, EU:F:2010:120, paragraph 30).
51 As has been found in paragraph 46 above, the present action brought in respect of the decision determining the applicant’s remuneration for January 2014, given material form in the payslip of that month, is admissible in so far as that decision applied Article 66a of the Staff Regulations, as amended by Article 1(46) of Regulation No 1023/2013, to the applicant for the first time.
52 Nevertheless, as stated in paragraph 44 above, the decision determining the applicant’s remuneration for January 2014 is not the first application of Article 65(4) of the Staff Regulations, introduced by Article 1(44) of Regulation No 1023/2013 in respect of the applicant and, therefore, that decision does not adversely affect her.
53 It follows that the applicant is entitled to rely on a plea of illegality in support of her action only in respect of Article 66a of the Staff Regulations, as amended by Article 1(46) of Regulation No 1023/2013, which introduced a solidarity levy as of 1 January 2014, whereas application of the method for updating remuneration provided for in Annex XI to the Staff Regulations was suspended pursuant to Article 65(4) of the Staff Regulations.
54 In support of the plea of illegality, the applicant puts forward seven pleas in law. The first plea alleges, in essence, discontinuance of the link between the application of the method of automatic adjustment of remuneration provided for in Annex XI to the Staff Regulations and the solidarity levy and infringement of the principle of parallelism between the remuneration of the officials and servants of the European Union and that of servants of the civil services of the Member States. The second plea alleges infringement of the freedom of association, the right to information and consultation and of collective bargaining, enshrined in Article 12(1), Article 27 and Article 28 of the Charter of Fundamental Rights of the European Union as fundamental rights and implemented by the second paragraph of Article 10, the second paragraph of Article 10b and Article 24b of the Staff Regulations, and infringement of Council Decision of 23 June 1981 establishing a tripartite consultation procedure concerning relations with staff (‘the Council Decision of 23 June 1981’). The third plea alleges infringement of acquired rights. The fourth plea alleges breach of the principle of proportionality. The fifth plea alleges infringement of the legislative procedure. The sixth plea alleges infringement of the obligation to state reasons. Lastly, the seventh plea alleges infringement of the principle of the protection of legitimate expectations resulting from the absence of transitional measures.
55 It is appropriate to examine, in the first place, the second, fifth and sixth pleas, alleging infringement of the freedom of association and the right to information, consultation and collective negotiation, infringement of the legislative process and infringement of the obligation to state reasons, respectively, which relate to the procedural legality of Regulation No 1023/2013, before examining, in the second place, the other pleas put forward in support of the plea of illegality, which concern the substantive legality of that regulation.
The second plea in law alleging infringement of the freedom of association and the right to information, consultation and collective negotiation
56 The applicant considers that Regulation No 1023/2013 is illegal in that it was adopted in breach of the freedom of association and of the rights to information, consultation and collective bargaining, enshrined in Article 12(1), Article 27 and Article 28 of the Charter of Fundamental Rights as fundamental rights and implemented by the second paragraph of Article 10 of the Staff Regulations, the second paragraph of Article 10b of the Staff Regulations and Article 24b of the Staff Regulations, and in breach of the Council Decision of 23 June 1981. More particularly, the applicant claims that the Staff Regulations Committee was not properly consulted and that the consultation procedure provided for in the Council Decision of 23 June 1981 was not respected. As regards the consultation of the Staff Regulations Committee, the applicant claims that the Staff Regulations Committee was not consulted on the first draft proposal to revise the Staff Regulations adopted by the Commission on 29 June 2011, which provided that in addition to the method for updating remuneration there would be a new solidarity levy of 5.5%, applicable as of 1 January 2013 until 31 December 2020, but only on the second draft proposal to revise the Staff Regulations, which provided for a solidarity levy of 6%, which the Commission referred to the Staff Regulations Committee on 21 November 2011. In addition, the applicant considers that the consultation of the Staff Regulations Committee which took place on 17 and 18 July 2013 was late and therefore ineffective. As regards consultation and concerted action with trade unions or staff associations (‘OSPs’), the applicant claims that the Commission did not consult the OSPs before the adoption of the first draft proposal to revise the Staff Regulations and nor did it consult the OSPs on the second draft proposal to revise the Staff Regulations. In addition, the applicant claims that the Council refused the OSPs’ request that the Conciliation Committee continue to meet throughout the trilogue discussions. In addition, the applicant submits that, although the consultation procedure provided for by the Council Decision of 23 June 1981 was initiated, it was not respected. Thus, first, the two meetings of the Consultation Committee organised on 6 May 2013 and 23 June 2013 were only information meetings which did not lead to any concerted action. Second, the Consultation Committee did not draw up any report on the divergent positions expressed by the parties at the end of those two meetings. In addition, the applicant submits that, in cases where the exercise of the rights enshrined in Article 28 of the Charter of Fundamental Rights is not sufficiently specific or is specified by provisions of EU law the validity of which is called into question, it can expect the fundamental right to collective bargaining enshrined in Article 28 of the Charter of Fundamental Rights to be respected, regardless of the provisions of secondary legislation implementing that article, which is the case here. In that context, she considers that, having regard to the conditions under which it took place, the consultation procedure provided for in the Council Decision of 23 June 1981 does not respect the right to collective bargaining.
57 The Council and the Parliament contest the applicant’s arguments.
58 As a preliminary matter, it should be noted that Article 12(1), Article 27 and Article 28 of the Charter of Fundamental Rights, which establish the freedom of association in the form of trade unions, a worker’s right to information and consultation within the undertaking and the right of collective bargaining and action, respectively, may apply in relations between the EU institutions and their staff. However, according to the actual wording of those provisions, the exercise of the rights laid down in those provisions is confined to the cases and conditions provided for by EU law (judgment of 15 September 2016, U4U and Others v Parliament and Council, T‑17/14, not published, EU:T:2016:489, paragraph 77).
59 As regards the dispositions of EU law laying down the conditions governing the exercise of the fundamental rights enshrined in Article 12(1), Article 27 and Article 28 of the Charter of Fundamental Rights, it should be noted, first, that Article 10 of the Staff Regulations provides for the Commission to consult the Staff Regulations Committee, consisting of representatives of the institutions of the European Union and an equal number of representatives of their Staff Committees, on all proposals to revise the Staff Regulations.
60 The consultation procedure provided for in the Council Decision of 23 June 1981 applies to Commission proposals to the Council relating to the amendment or application of provisions in the Staff Regulations concerning remuneration or pensions, if any member of the Consultation Committee, consisting, in principle, of an equal number of representatives of the Member States, of representatives of the staff, designated by the OSPs, and of the chief administrative official of each EU institution, so requests. According to point I.8 of the Council Decision of 23 June 1981, read in the light of the guidelines on the interpretation of that decision adopted by the Council on 6 May 2013 with a view to its application in the course of the ordinary legislative procedure on the proposal to revise the Staff Regulations, the role of that consultation procedure is to examine all the available information and the positions of the parties with the aim of facilitating as far as possible an alignment of positions and of ensuring that the views of the staff and the administrative authorities are known to the representatives of Member States before firm decisions are adopted by them, in the context of the ordinary legislative procedure. Under that provision, the Council may, when adopting a position in the course of the ordinary legislative procedure, take into account the report from the Chair of the Consultation Committee (judgment of 15 September 2016, U4U and Others v Parliament and Council, T‑17/14, not published, EU:T:2016:489, paragraph 115).
61 Thus, Article 10 of the Staff Regulations and the Council Decision of 23 June 1981 concern the conditions governing the exercise of a worker’s right to information and consultation, enshrined in Article 27 of the Charter of Fundamental Rights, in relations between the EU institutions and their staff (judgment of 15 September 2016, U4U and Others v Parliament and Council, T‑17/14, not published, EU:T:2016:489, paragraph 116).
62 By contrast, it should be noted that the second paragraph of Article 10b of the Staff Regulations, refers merely to the possibility for the Commission to consult representative OSPs on proposals to revise the Staff Regulations referred to in Article 10 of the Staff Regulations, as a result of which the applicant cannot rely on that provision to claim a right for representative OSPs to be consulted on proposals to revise the Staff Regulations.
63 Second, it should be made clear that Article 24b of the Staff Regulations, on which the applicant also relies, concerns the conditions governing the exercise of the freedom of association, enshrined in Article 12(1) of the Charter of Fundamental Rights, in that the former states that officials are entitled to exercise the right of association and that they may, in particular, be members of OSPs of EU officials.
64 However, it should be noted that, under the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union, which is applicable to the procedure before the General Court in accordance with the first paragraph of Article 53 thereof, and Article 76(d) of the Rules of Procedure, all applications must contain the subject matter of the dispute, the pleas in law and arguments relied on and a summary of the pleas relied on. It is settled case-law that that information must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the application, if necessary without any further information. In order to guarantee legal certainty and the sound administration of justice, it is necessary, if an action is to be admissible, that the basic legal and factual particulars relied on be indicated, at least in summary form, coherently and intelligibly in the text of the application itself (see judgment of 25 January 2018, BSCA v Commission, T‑818/14, EU:T:2018:33, paragraph 95 and the case-law cited).
65 The fact remains that the applicant has not elaborated any argument in the application in support of the alleged infringement of Article 24b of the Staff Regulations as a result of which such a plea must be dismissed as inadmissible.
66 Third, it is to be noted that the applicant has not relied on a provision of EU law laying down the conditions governing the exercise of the right of collective bargaining and action enshrined in Article 28 of the Charter of Fundamental Rights. The applicant relies merely on an infringement of the consultation procedure established by the Council Decision of 23 June 1981, which, as has been stated in paragraph 59 above, concerns the conditions governing the exercise of a worker’s right to information and consultation as enshrined in Article 27 of the Charter of Fundamental Rights.
67 In the reply, the applicant submits that a breach of Article 28 of the Charter of Fundamental Rights may, however, be relied on since ‘the validity [of the applicable provisions of secondary legislation] is in fact in doubt in the light of amendments made to [those provisions]’. The applicant observes that, in the present case, OSPs’ rights and duties are indeed determined by the applicable provisions of secondary legislation, but that their validity is in doubt in so far as she calls into question the legality of Article 65(4) of the Staff Regulations, introduced by Regulation No 1023/2013, and of Article 66a of the Staff Regulations, as amended by that regulation.
68 It is to be noted that, save in the situations provided for by the applicable provisions of secondary legislation, disregard for the conditions governing the exercise of the right of collective bargaining and action enshrined in Article 28 of the Charter of Fundamental Rights may be relied on only where the rights and duties in question were not already sufficiently determined by those provisions or where their validity itself is in doubt (see, to that effect, judgment of 18 June 2013, Heath v ECB, T‑645/11 P, EU:T:2013:326, paragraph 155).
69 However, in the present case, the fact remains that the applicable provisions of secondary legislation the legality of which the applicant calls into question, namely Article 65(4) of the Staff Regulations, introduced by Regulation No 1023/2013, and Article 66a of the Staff Regulations, as amended by that regulation, do not set out the conditions governing the exercise of the right of collective bargaining and action, enshrined in Article 28 of the Charter of Fundamental Rights. It follows that the applicant cannot rely on an infringement of the conditions governing the exercise of the rights and duties enshrined in Article 28 of the Charter of Fundamental Rights.
70 Moreover, it should be made clear that, according to Article 28 of the Charter of Fundamental Rights, the right of collective bargaining refers expressly to the negotiation and conclusion of collective agreements. However, it must be borne in mind that the right to negotiate and conclude collective agreements is intended to enable negotiations to take place between employer and employees so as to determine working conditions where the rights and duties are not sufficiently determined by the applicable provisions (judgment of 15 September 2016, U4U and Others v Parliament and Council, T‑17/14, not published, EU:T:2016:489, paragraph 117).
71 Therefore, contrary to what the applicant claims, the right to collective bargaining cannot be equated with the right of the OSPs to negotiate the actual content of the provisions of the Staff Regulations the adoption of which is governed, in accordance with Article 294 TFEU, by the ordinary legislative procedure.
72 Consequently, the examination of the present plea will be limited to ascertaining whether the conditions governing the exercise of a worker’s right to information and consultation, as provided for in Article 10 of the Staff Regulations and in the Council Decision of 23 June 1981, were complied with in the present case.
– Infringement of Article 10 of the Staff Regulations
73 The applicant submits that, in accordance with Article 10 of the Staff Regulations, the Commission should have referred to the Staff Regulations Committee the first draft proposal to revise the Staff Regulations which it adopted on 29 June 2011, which included a solidarity levy of 5.5%, and not the second draft proposal to revise the Staff Regulations, which provided for a solidarity levy of 6%, which it submitted to that committee on 21 November 2011. The applicant also submits that the consultation of the Staff Regulations Committee on 17 and 18 July 2013 also did not meet the requirements of Article 10 of the Staff Regulations, in that it was late and therefore ineffective.
74 In that regard, in the first place, as regards the applicant’s argument that Article 10 of the Staff Regulations required the Commission to refer the first draft proposal to revise the Staff Regulations which it had adopted on 29 June 2011 to the Staff Regulations Committee, it should be noted that Article 10 of the Staff Regulations requires the Commission to refer ‘all proposals to revise the Staff Regulations’ to the Staff Regulations Committee. However, in the present case, first, it is apparent from the documents before the Court that the text adopted by the Commission on 29 June 2011 was not formally a proposal to revise the Staff Regulations, but a draft proposal to revise the Staff Regulations intended to be the subject of consultation by the OSPs before a formal proposal to revise the Staff Regulations was submitted to the Council and to the Parliament. Second, it should also be made clear that the text referred by the Commission to the Staff Regulations Committee on 21 November 2011 was subsequently sent by the Commission to the Parliament and the Council as a legislative proposal, within the meaning of Article 294(2) TFEU, within the framework of the ordinary legislative procedure, which governs, in accordance with Article 336 TFEU, the adoption and amendment of the Staff Regulations and the CEOS by those institutions.
75 The applicant’s argument that the Commission infringed Article 10 of the Staff Regulations by not referring its first draft proposal to revise the Staff Regulations to the Staff Regulations Committee must therefore be rejected as unfounded.
76 In the second place, as regards the applicant’s argument that the consultation of the Staff Regulations Committee on 17 and 18 July 2013 infringed Article 10 of the Staff Regulations on the ground that it took place at a late stage of the legislative procedure, so that it was deprived of effectiveness, it should be made clear that Article 10 of the Staff Regulations imposes on the Commission a consultation obligation which extends not only to formal proposals but also to the introduction by it of substantial amendments to proposals which have already been considered, unless, in the latter case, the amendments correspond, in essence, to those proposed by the Staff Regulations Committee (judgments of 11 July 2007, Centeno Mediavilla and Others v Commission, T‑58/05, EU:T:2007:218, paragraph 35; of 15 September 2016, U4U and Others v Parliament and Council, T‑17/14, not published, EU:T:2016:489, paragraph 129; and of 16 November 2017, USFSPEI v Parliament and Council, T‑75/14, EU:T:2017:813, paragraph 99).
77 Such an interpretation is dictated both by the wording of Article 10 of the Staff Regulations and by the role assumed by the Staff Regulations Committee. First, by providing for consultation without reservation or exception on any proposal for revision of the Staff Regulations, that provision attaches a wide scope to the obligation laid down by it. Its terms are therefore manifestly irreconcilable with a narrow interpretation of its scope. Second, the Staff Regulations Committee, as a joint body composed both of representatives of the administrative authorities and of democratically elected representatives of the staff of all institutions, is called upon to take into consideration and express the interests of the European Union civil service as a whole (judgments of 11 July 2007, Centeno Mediavilla and Others v Commission, T‑58/05, EU:T:2007:218, paragraph 36; of 15 September 2016, U4U and Others v Parliament and Council, T‑17/14, not published, EU:T:2016:489, paragraph 130; and of 16 November 2017, USFSPEI v Parliament and Council, T‑75/14, EU:T:2017:813, paragraph 100).
78 It follows that, when the Commission amends its proposal for revision of the Staff Regulations during the ordinary legislative procedure, it has an obligation to re-consult the Staff Regulations Committee before the legislative provisions concerned are adopted by the Council, if that amendment substantially affects the tenor of the proposal (judgments of 15 September 2016, U4U and Others v Parliament and Council, T‑17/14, not published, EU:T:2016:489, paragraph 135, and of 16 November 2017, USFSPEI v Parliament and Council, T‑75/14, EU:T:2017:813, paragraph 101).
79 In the present case, it is clear that, although the Commission exercised its power of legislative initiative in submitting the proposal for revision of the Staff Regulations to the Parliament and the Council on 13 December 2011, it did not exercise that power in order to amend that proposal (judgment of 16 November 2017, USFSPEI v Parliament and Council, T‑75/14, EU:T:2017:813, paragraph 102).
80 Indeed, the Commission participated in the trilogue negotiations held during the ordinary legislative procedure in question. However, according to point 13 of the Joint Declaration on practical arrangements for the codecision procedure (Article 251 of the EC Treaty) (OJ 2007 C 145, p. 5), which was made by the Parliament, the Council and the Commission on 13 June 2007 and which governs such informal meetings, the Commission’s role at the stage of first reading in the Parliament is to promote the contacts established in order ‘to facilitate the conduct of proceedings at first reading’ and to exercise ‘its right of initiative in a constructive manner with a view to reconciling the positions of the … Parliament and the Council, with due regard for the balance between the institutions and the role conferred on it by the Treaty’ (judgment of 16 November 2017, USFSPEI v Parliament and Council, T‑75/14, EU:T:2017:813, paragraph 103).
81 Thus, the fact that the trilogue negotiations, which, in the present case, were held at the stage of the first reading by the Parliament, and in which the Commission participated in the role defined in paragraph 80 above, culminated in a compromise between the Parliament and the Council aimed at amending the proposal for revision of the Staff Regulations cannot be regarded as constituting an amendment of that proposal by the Commission itself (judgment of 16 November 2017, USFSPEI v Parliament and Council, T‑75/14, EU:T:2017:813, paragraph 104).
82 Furthermore, the Parliament’s adoption at first reading of a text amending the proposal for revision of the Staff Regulations also cannot be regarded as an amendment by the Commission itself of its initial proposal (judgment of 16 November 2017, USFSPEI v Parliament and Council, T‑75/14, EU:T:2017:813, paragraph 105).
83 It follows from the foregoing that the Commission was not obliged to re-consult the Staff Regulations Committee pursuant to Article 10 of the Staff Regulations either after the conclusion of the trilogue negotiations held at the stage of the first reading in the Parliament or after the latter’s adoption of its proposal at first reading (judgment of 16 November 2017, USFSPEI v Parliament and Council, T‑75/14, EU:T:2017:813, paragraph 106).
84 In that regard, the applicant cannot legitimately rely on the fact that, by letter of 5 July 2013, the Commission transmitted to the Staff Regulations Committee, despite not being required to do so, the Parliament’s position of 2 July 2013 after first reading, stating that, in its view, the draft proposal to revise the Staff Regulations, which it had referred to the Staff Regulations Committee on 21 November 2011, had not been substantially amended under the ordinary legislative procedure and that, at that stage of the legislative procedure, Article 10 of the Staff Regulations was not applicable. That fact is irrelevant as regards the legality of the procedure for the adoption of Regulation No 1023/2013 and, more particularly, as regards the Commission’s compliance in the present case with its obligation under Article 10 of the Staff Regulations.
85 The applicant’s argument that the consultation of the Staff Regulations Committee on 17 and 18 July 2013, following its referral by the Commission on 5 July 2013, took place at a late stage in the legislative procedure in question and was thus ineffective in breach of Article 10 of the Staff Regulations, must therefore be rejected as unfounded.
– Infringement of the consultation procedure
86 The applicant submits that the Commission did not consult the OSPs prior to the adoption of the first draft proposal to revise the Staff Regulations adopted on 29 June 2011 and that it also did not consult the OSPs on the second draft proposal to revise the Staff Regulations of 13 December 2011. In addition, the applicant claims that both meetings of the Consultation Committee held on 6 May 2013 and 20 June 2013 were information meetings during which no document was communicated to the OSPs and which did not give rise to any concerted action and that, at their conclusion, the Consultation Committee did not submit any report mentioning the differences of opinion between the parties, in breach of the Council Decision of 23 June 1981. The applicant also claims that the Council refused the OSPs’ request that the Consultation Committee continue to meet throughout the trilogue phase that lasted from 13 May 2013 to 25 June 2013.
87 In that respect, in the first place, as regards the lack of consultation of the OSPs prior to the adoption of the Commission’s first draft proposal to revise the Staff Regulations of 29 June 2011, it should be noted that that fact is irrelevant as regards the legality of the ordinary legislative procedure initiated after 13 December 2011 by the transmission to the Parliament and to the Council of the second draft proposal to revise the Staff Regulations in the form of a legislative proposal. Such an argument must therefore be rejected as ineffective.
88 In the second place, as regards the applicant’s argument that the Commission failed to consult the OSPs before adopting its draft proposal to revise the Staff Regulations of 13 December 2011, it should be noted that, as the General Court found in paragraph 4 of the judgment of 15 September 2016, U4U and Others v Parliament and Council (T‑17/14, not published, EU:T:2016:489), the OSPs were consulted on the second draft proposal for a revision of the Staff Regulations on 7 September 2011 and administrative, technical and political concerted action then took place between the Commission and the OSPs in that regard on 6 and 28 October and 7 November 2011 respectively.
89 Since the applicant has not put forward any matters of law or of fact capable of calling that finding into question, the applicant’s argument that the Commission did not consult the OSPs before adopting its second draft proposal to revise the Staff Regulations and to forward it to the Parliament and to the Council on 13 December 2011 must be rejected as unfounded.
90 In the third place, as regards the applicant’s complaint that no document was distributed to the OSPs at the meetings of the Consultation Committee of 6 May 2013 and 20 June 2013, it must be noted that that complaint has already been examined and rejected by the Court in the judgment of 15 September 2016, U4U and Others v Parliament and Council (T‑17/14, not published, EU:T:2016:489).
91 Thus, in paragraph 161 of the judgment of 15 September 2016, U4U and Others v Parliament and Council (T‑17/14, not published, EU:T:2016:489), the Court noted that the consultation procedure provided for by the Council Decision of 23 June 1981 does not prescribe or prohibit the transmission of written documents to the OSPs for the preparation of or in connection with consultation meetings.
92 As the Court found in paragraph 162 of the judgment of 15 September 2016, U4U and Others v Parliament and Council (T‑17/14, not published, EU:T:2016:489), according to point I.8 of the Council Decision of 23 June 1981, read in the light of the guidelines on the interpretation of that decision adopted by the Council on 6 May 2013, the role of that consultation procedure provided for in that decision is to examine all the available information and the positions of the parties with the aim of facilitating as far as possible an alignment of positions and of ensuring that the views of the staff and the administrative authorities are known to the representatives of Member States before firm decisions are adopted by them, in the context of the ordinary legislative procedure.
93 In the light of the role of the consultation procedure provided for in the Council Decision of 23 June 1981, the answer to whether the Council is required to communicate the information available to it to the OSPs in writing so that they can express their views therefore depends on the knowledge the OSPs have of the information in question, on the nature and scope of that information, and on the time and technical constraints typical of trilogue negotiations (judgment of 15 September 2016, U4U and Others v Parliament and Council, T‑17/14, not published, EU:T:2016:489, paragraph 163).
94 In the present case, as regards the first meeting of the Consultation Committee, which concerned the Council’s negotiating mandate in view of the trilogue negotiations, it should be noted that the Council was not required to communicate documents to the OSPs in writing, since they were aware of the very draft proposal to revise the Staff Regulations to be negotiated (judgment of 15 September 2016, U4U and Others v Parliament and Council, T‑17/14, not published, EU:T:2016:489, paragraph 164).
95 As far as concerns the second meeting of the Conciliation Committee, which took place on 20 June 2013 after the Parliament, Council and Commission had reached a provisional compromise on 19 June 2013 on the proposal for revision of the Staff Regulations, it should be noted that, while the OSPs were aware of the content of the proposal to revise the Staff Regulations and of some of the Member States’ proposals, as shown in the leaflet published by several OSPs on 17 September 2012, they were not aware of the exact outcome of the trilogue negotiations which concerned, in particular, those proposals (judgment of 15 September 2016, U4U and Others v Parliament and Council, T‑17/14, not published, EU:T:2016:489, paragraph 165).
96 Therefore, taking into account both the nature and extent of the amendments introduced in the draft proposal to revise the Staff Regulations during the trilogue negotiations, the Council was required to forward to the OSPs all available information so as to enable them to give their views effectively on these amendments. This therefore presupposed, in principle, that those OSPs could have access to written support to enable them to react effectively (judgment of 15 September 2016, U4U and Others v Parliament and Council, T‑17/14, not published, EU:T:2016:489, paragraph 166).
97 However, it should be borne in mind that on 20 June 2013 the text reflecting the provisional compromise of 19 June 2013 was not yet available, so that it could not physically have been sent to the OSP members of the Consultation Committee (judgment of 15 September 2016, U4U and Others v Parliament and Council, T‑17/14, not published, EU:T:2016:489, paragraph 167).
98 In those circumstances, the Council cannot be criticised for having proceeded at the meeting of the Consultation Committee on 20 June 2013 to an oral presentation of the main elements of the provisional compromise obtained on 19 June 2013, a presentation which, in the particular circumstances of the case, characterised by temporal and technical constraints characterising the conduct of the trilogue negotiations, was the only possible process for informing the OSPs (judgment of 15 September 2016, U4U and Others v Parliament and Council, T‑17/14, not published, EU:T:2016:489, paragraph 169).
99 In addition, first, it should be noted that the Council did in fact forward to the OSP members of the Consultation Committee the text of the provisional compromise, with explanations, on the evening of 24 June 2013, in addition to the final compromise, on 27 June 2013, that is, before firm positions were adopted by the Member States, within the meaning of point I.8 of the Council Decision of 23 June 1981, at the time of the examination of the final compromise text by the Permanent Representatives Committee (Coreper) on 28 June 2013. Second, it is to be noted that the OSPs participating in the Consultation Committee did not request in due time the organisation of a new meeting in order to be heard on the text of the provisional compromise or even on the text of the final compromise (judgments of 15 September 2016, U4U and Others v Parliament and Council, T‑17/14, not published, EU:T:2016:489, paragraph 170, and of 16 November 2017, USFSPEI v Parliament and Council, T‑75/14, EU:T:2017:813, paragraphs 119 to 122).
100 The fact remains that the applicant has not put forward any new matter of fact or of law capable of calling into question the findings of the Court in the final judgments of 15 September 2016, U4U and Others v Parliament and Council (T‑17/14, not published, EU:T:2016:489), and of 16 November 2017, USFSPEI v Parliament and Council (T‑75/14, EU:T:2017:813), set out in paragraphs 91 to 99 above, so that the applicant’s complaint that the meetings of the Consultation Committee of 6 May 2013 and of 20 June 2013 were merely general information meetings, during which no document was provided to the OSPs and which did not give rise to any concerted action, must be rejected as unfounded.
101 In the fourth place, the applicant’s argument that the Consultation Committee did not draw up a report setting out the parties’ divergent positions following the meetings of 9 May 2013 and 23 June 2013 must be rejected as unfounded. It should be made clear that, in accordance with pointI.7 of the Council Decision of 23 June 1981, read in the light of guideline 5 of the Council Declaration of 6 May 2013 on the interpretation of that decision, at the stage of the examination of the draft proposal to revise the Staff Regulations by the Council, the Chair of the Consultation Committee is to draw up a report to the Coreper on behalf of the Consultation Committee following every meeting in which the participants have presented their views. It should be made clear that it appears from the message from the Secretary-General of the Council concerning the reform of the Staff Regulations, sent to Council staff on 28 June 2013, provided by the applicant herself, that the Secretary-General of the Council indicated to the staff of that institution that he had presented Coreper with the results of the meeting of the Consultation Committee of 20 June 2013. In addition, it is clear from the documents produced by the Council that, although no written report was drawn up at the end of the meetings of the Consultation Committee on 6 May 2013 and 20 June 2013, the Secretary-General of the Council, Chair of the Consultation Committee, did indeed make an oral report to Coreper on those meetings on 8 May 2013 and 26 June 2013 respectively.
102 In the fifth place, the applicant’s complaint that the Secretary-General of the Council refused the OSPs’ request that the Consultation Committee continue to meet throughout the trilogue phase should also be dismissed as unfounded. According to pointI.5 of the Council Decision of 23 June 1981, read in the light of guideline 5 of the Council Declaration of 6 May 2013 on the interpretation of that decision, at the first reading stage by the Council of a draft proposal to revise the Staff Regulations, the Consultation Committee is to hold a meeting summoned by the Chair if so requested by one of the parties. It follows that, while it was open to staff representatives, appointed by the representative OSPs, who are members of the Consultation Committee to request, on several occasions, that that committee hold a meeting, the Secretary-General of the Council, as Chair of the Consultation Committee, was entitled to refuse a general request such as the request to the effect that the Consultation Committee continue to meet throughout the trilogue phase.
103 In the light of the foregoing considerations, the second plea in law must be dismissed as unfounded.
The fifth plea in law alleging an infringement of the legislative procedure
104 The applicant observes that the draft proposal to revise the Staff Regulations which the Commission submitted to the Council and to the Parliament on 13 December 2011 did not provide for either suspension of the application of the method for updating remuneration in 2013 and 2014 or the application of the solidarity levy during that same period. According to the applicant, it was only during the trilogue phase that the Council introduced those amendments by reproducing the conclusions of the European Council of 7 and 8 February 2013. In so doing, the Council allegedly infringed Article 296 TFEU, which provides that, when considering draft legislative acts, the Parliament and the Council are to refrain from adopting acts not provided for by the relevant legislative procedure in the area in question. In addition, the applicant submits that, by adopting its conclusions of 7 and 8 February 2013, subsequently incorporated by the Council of the European Union, the European Council infringed Article 15(1) TEU, which provides that it is not to exercise legislative functions.
105 The Council and the Parliament contest the applicant’s arguments.
106 It should be made clear, as a preliminary point, that the applicant’s arguments are based on the false premiss that the measure consisting of applying a solidarity levy of 6%, whereas the application of the method for updating remuneration was suspended, follows from the conclusions of the European Council of 7 and 8 February 2013 and was merely reproduced by the Council and the Parliament at the time of the adoption of Regulation No 1023/2013. However, it should be made clear that, although the conclusions of the European Council of 7 and 8 February 2013, issued in the context of the guidelines concerning the multiannual financial framework, provided for the suspension of the application of the method for updating remuneration for 2 years, and the introduction of a 6% levy ‘as part of the reform of the salary method’, those conclusions did not provide for that levy to be applied during the period of suspension in question.
107 In any event, the applicant’s arguments alleging infringement of Article 296 TFEU and Article 15(1) TEU cannot succeed.
108 Thus, first, as regards the Council’s alleged infringement of the third paragraph of Article 296 TFEU, it should be noted that that provision provides that ‘when considering draft legislative acts, the European Parliament and the Council shall refrain from adopting acts not provided for by the relevant legislative procedure in the area in question’.
109 In accordance with Article 336 TFEU, the Staff Regulations and the CEOS are to be laid down by the Parliament and the Council, after consulting the other institutions concerned, by means of regulations in accordance with the ordinary legislative procedure.
110 In the present case, the Council and the Parliament, considered the draft proposal to revise the Staff Regulations introduced by the Commission on 13 December 2011 and adopted Regulation No 1023/2013, after the Parliament had adopted its position at first reading on 2 July 2013 and the Council had approved that position on 10 October 2013 in accordance with Article 294(3) and (4) TFEU.
111 It must therefore be held that, in the present case, the Parliament and the Council did not adopt any acts other than those provided for by the ordinary legislative procedure.
112 Furthermore, it should be noted that, contrary to what the applicant claims, it does not appear from the third paragraph of Article 296 TFEU that that provision precludes the Council from taking into account the conclusions of the European Council when it exercises its right to depart from the legislative proposal submitted by the Commission, which is not binding on it. It must be stated that, within the framework of the legislative powers attributed to the Council, jointly with the Parliament, under Article 14(1) TEU, Article 16(1) TEU and Article 289 TFEU, which reflects the principle of conferred powers, enshrined in Article 13(2) TEU, and, more broadly, the principle of institutional balance, characteristic of the institutional structure of the European Union (see, by analogy, judgment of 6 September 2017, Slovakia and Hungary v Council, C‑643/15 and C‑647/15, EU:C:2017:631, paragraph 146), it is for the Council to carry out policy-making and coordinating functions as laid down in the Treaties.
113 It follows that the applicant’s argument alleging infringement of Article 296 TFEU must be rejected as unfounded.
114 Second, as regards the applicant’s argument that the European Council infringed Article 15(1) TEU and therefore undermined the legality of the legislative procedure which led to the adoption of Regulation No 1023/2013, it should be noted, first of all, that, as has been found in paragraph 111 above, the Commission, the Council and the Parliament complied with the original legislative procedure applicable in the present case.
115 Next, it should be noted that Article 15(1) TEU provides that ‘the European Council shall provide the Union with the necessary impetus for its development and shall define the general political directions and priorities thereof. It shall not exercise legislative functions’.
116 That provision does not preclude the European Council from adopting a position on an issue which is the subject of a legislative procedure.
117 Lastly, it should be noted that the effect of the ‘political’ nature of the European Council’s conclusions on both the Parliament and the Council’s legislative power cannot be a ground on which the Court may annul a contested decision (see, to that effect, judgments of 6 September 2017, Slovakia and Hungary v Council, C‑643/15 and C‑647/15, EU:C:2017:631, paragraph 145, and of 21 June 2018, Poland v Parliament and Council, C‑5/16, EU:C:2018:483, paragraph 86).
118 It follows that the applicant’s argument that the European Council compromised the legality of the legislative procedure which led to the adoption of Regulation No 1023/2013 by adopting the conclusions of 7 and 8 February 2013 must be rejected as unfounded.
119 Furthermore, in so far as the applicant’s argument alleging infringement of Article 15(1) TEU must be regarded, in itself, as a plea of illegality in respect of the conclusions of the European Council of 7 and 8 February 2013, it must be borne in mind that, in so far as Article 277 TFEU is not intended to enable a party to contest the applicability of any measure of general application in support of any action whatsoever, the scope of a plea of illegality must be confined to what is necessary for the resolution of the dispute. It follows that the general measure claimed to be illegal must be applicable, directly or indirectly, to the issue with which the action is concerned and there must be a direct legal connection between the contested individual decision and the general measure in question (see judgment of 4 October 2018, Tataram v Commission, T‑546/16, not published, EU:T:2018:644, paragraph 45 and the case-law cited).
120 The fact remains that, in the present case, there is no such legal connection between the individual decision forming the subject matter of the present action, namely the decision determining the applicant’s remuneration for January 2014 which applied Article 66a of the Staff Regulations, as amended by Article 1(46) of Regulation No 1023/2013, for the first time, and the conclusions of the European Council of 7 and 8 February 2013, with the result that, in so far as the applicant’s argument must be regarded as a plea of illegality in respect of the conclusions of the European Council of 7 and 8 February 2013, it must be rejected as inadmissible.
121 The fifth plea in law must therefore be dismissed in its entirety.
The sixth plea in law alleging infringement of the obligation to state reasons
122 The applicant claims that the reasons stated in Regulation No 1023/2013 to justify the application of the solidarity levy provided for in Article 66a of the Staff Regulations, namely the particular difficulties of the economic situation, are no different from those put forward to justify the introduction of similar levies in the past. The applicant cites in that regard the first recital of Council Regulation (Euratom, ECSC, EEC) No 3821/81 of 15 December 1981 amending the Staff Regulations of officials of the European Communities and the conditions of employment of other servants of those Communities (OJ 1981 L 386, p. 1), from which it is allegedly clear that the introduction of a special levy on remuneration, pensions and termination-of-service allowances paid net by the Communities was necessitated by the specific difficulties of the economic and social situation. The applicant submits that the imposition of a solidarity levy during a period in which the application of the method for updating remuneration is suspended constitutes a new measure which justifies a specific statement of reasons which is lacking in the present case. In addition, the applicant claims that, by referring in recitals 12 and 13 of Regulation No 1023/2013 to the conclusions of the European Council of 7 and 8 February 2013, that regulation, in breach of Article 296 TFEU, refers in its reasoning to an act not provided for in the European Union’s legislative process.
123 The Council and the Parliament contest the applicant’s arguments.
124 It must be recalled that, according to the case-law, the statement of reasons required by Article 296 TFEU must be appropriate to the act at issue and disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent court to exercise its power of review. That requirement must be appraised by reference to the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons for a measure meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see judgment of 15 September 2016, U4U and Others v Parliament and Council, T‑17/14, not published, EU:T:2016:489, paragraph 181 and the case-law cited).
125 In addition, in accordance with the case-law, the reasoning of an act of general scope, such as Regulation No 1023/2013, may merely indicate the overall situation which led to its adoption and the general objectives which the legislature proposes to achieve, without it being necessary to provide a specific statement of reasons in support of all the details which might be contained in such an act. Thus, it is not necessary to state the reasons for each amendment to the Staff Regulations, but it is sufficient for the legislature to explain the essential part of the measures, even briefly, provided that the explanation is clear and relevant (judgments of 29 November 2006, Campoli v Commission, T‑135/05, EU:T:2006:366, paragraph 159, and of 23 April 2008, Pickering v Commission, F‑103/05, EU:F:2008:45, paragraph 121).
126 In the present case, first, it should be made clear that the suspension of the application of the method for updating remuneration in 2013 and 2014, and the introduction of a solidarity levy as of 1 January 2014, form only part of the far-reaching statutory reform that the Parliament and the Council implemented by adopting Regulation No 1023/2013.
127 Second, it should be made clear that recitals 11, 12 and 13 of Regulation No 1023/2013 state as follows:
‘(11) The potential advantages for officials and other servants of the European Union of the application of the [multi-annual mechanism for pay update] should be balanced by the reintroduction of the system of a “levy”. As in the case of the [multi-annual mechanism for pay update], the application of the solidarity levy may be provisionally prolonged. It seems appropriate in the present circumstances to increase the solidarity levy, as compared with the level of the special levy applicable from 2004 to 2012, and to provide for a more progressive rate. This is to take account of the particularly difficult economic and social context in the Union, and its ramifications for public finances throughout the Union. The need to consolidate public finances in the Union, including in the short term, requires a swift and particular effort of solidarity on the part of the staff of the institutions of the Union. Such a solidarity levy should thus apply to all officials and other servants of the Union from 1 January 2014.
(12) In its conclusions of 8 February 2013 on the multiannual financial framework, the European Council pointed out that the need to consolidate public finances in the short, medium and long term requires a particular effort by every public administration and its staff to improve efficiency and effectiveness and to adjust to the changing economic context. That call reiterated in fact the objective of the 2011 Commission proposal for amendment of the Staff Regulations of Officials and the [CEOS], which strove to ensure cost-efficiency and acknowledged that challenges currently faced by the European Union require a particular effort by each and every public administration and each and every member of its staff to improve efficiency and to adjust to the changing economic and social context in Europe. The European Council called moreover, as part of the reform of the Staff Regulations, for the adjustment of remuneration and pensions of all staff of the Union institutions through the [multi-annual mechanism for pay update] to be suspended for two years and for the new solidarity levy to be reintroduced as part of the reform of the salary method.
(13) In view of those conclusions and in order to respond to future budgetary constraints as well as to show solidarity on the part of the European civil service with the severe measures taken by Member States as a result of the unprecedented financial crisis and the particularly difficult social and economic context in the Member States and the Union as a whole, it is necessary to provide for suspension of the [multi-annual mechanism for pay update] for two years for all remuneration, pensions and allowances of officials and to apply the solidarity levy despite such suspension.’
128 It is thus clear from recital 11 of Regulation No 1023/2013 that the Parliament and the Council justified the introduction of a solidarity levy as of 1 January 2014 by the need to balance the potential advantages for officials and other servants of the European Union of the application of the method for updating remuneration. It is also clear from that recital that the decision to apply that solidarity levy as of 1 January 2014 serves the objective of ‘[consolidating] public finances in the Union, including in the short term’ by ‘a swift and particular effort of solidarity on the part of the staff of the institutions of the Union’. Contrary to what the applicant maintains, it is also clear from that recital that referring to the particularly difficult economic and social context in the European Union is not the justification for the introduction of the solidarity levy as such, as was the case for the special levy introduced by Regulation No 3821/81, but rather increasing the amount of the solidarity levy, as compared with the level of the special levy applicable from 2004 to 2012, and providing for a more progressive rate.
129 In addition, it should be made clear that, contrary to what the applicant claims, the Parliament and the Council stated the reasons justifying the choice to apply the solidarity levy as of 1 January 2014, whereas the application of the method for updating remuneration was suspended for 2013 and 2014, in recitals 12 and 13 of Regulation No 1023/2013. It is clear from those recitals that that choice was intended to respond not only to the conclusions of the European Council of 7 and 8 February 2013 but also ‘to future budgetary constraints’, ‘the particularly difficult social and economic context in the Member States and the Union as a whole’ and to show ‘solidarity on the part of the European civil service with the severe measures taken by Member States as a result of the unprecedented financial crisis’.
130 It must therefore be considered that the reasoning provided in recitals 11, 12 and 13 of Regulation No 1023/2013 meets the criteria of the case-law referred to in paragraphs 124 and 125 above. It reflects the reasoning of the EU legislature and the general objectives pursued. It informs officials sufficiently of the reasons for the introduction of a solidarity levy for a period during which the application of the method for updating remuneration is suspended.
131 In addition, as regards the applicant’s argument that the Parliament and the Council failed to fulfil their obligation to state reasons by referring, in recitals 12 and 13 of Regulation No 1023/2013, to the conclusions of the European Council of 7 and 8 February 2013, it must be noted, as did the Council, that although, in accordance with Article 296 TFEU, legal acts must state the reasons on which they are based, that does not preclude the legislature from referring, in a recital, to policy guidelines defined by the European Council.
132 The plea alleging a breach of the obligation to state reasons must therefore be dismissed as unfounded.
The first plea in law alleging discontinuance of the link between the application of the method of automatic adjustment of remuneration provided for in Annex XI to the Staff Regulations and the solidarity levy, and infringement of the principle of parallelism
133 The applicant submits that it is apparent from the judgments of 3 July 1985, Abrias and Others v Commission (3/83, EU:C:1985:283), and of 22 June 1994, Rijnoudt and Hocken v Commission (T‑97/92 and T‑111/92, EU:T:1994:69), that the ‘principle of parallelism’ means that the solidarity levy can be applied only where the method for adjusting remuneration, which is its counterpart, is itself applicable. The applicant submits that it is also clear from recital 11 of Regulation No 1023/2013 and from Article 66a(1) of the Staff Regulations, as amended by that regulation, that the solidarity levy is intended to offset the advantages which officials and servants of the European Union derive from the application of the method for adjusting remuneration. That link is confirmed by Article 15 of Annex XI to the Staff Regulations, as amended by Regulation No 1023/2013, which links the amendments to the solidarity levy to changes in the method for adjusting remuneration. It follows that the legislature could not provide that the solidarity levy would apply for a period during which the application of the method for adjusting remuneration was suspended.
134 The Council and the Parliament contest the applicant’s arguments.
135 As a preliminary matter, it should be noted that, according to settled case-law, the legislature is entitled at any time to make, for the future, such amendments of the Staff Regulations as it considers to be consistent with the interests of the service, including where those amendments are less favourable (judgments of 30 September 1998, Ryan v Court of Auditors, T‑121/97, EU:T:1998:232, paragraph 98, and of 11 July 2007, Centeno Mediavilla and Others v Commission, T‑58/05, EU:T:2007:218, paragraph 86).
136 In addition, it is settled case-law that, in fields where the EU legislature has a broad discretion, judicial review by the EU Courts must be confined to ascertaining whether the measure in question is not vitiated by any manifest error or misuse of powers and that the authority concerned has not manifestly exceeded the limits of its discretion (see judgment of 23 January 2007, Chassagne v Commission, F‑43/05, EU:F:2007:14, paragraph 56 and the case-law cited).
137 The arguments put forward by the applicant must be examined in the light of those principles.
138 In that regard, first of all, it should be made clear that it is not apparent from the judgments of 3 July 1985, Abrias and Others v Commission (3/83, EU:C:1985:283), and of 22 June 1994, Rijnoudt and Hocken v Commission (T‑97/92 and T‑111/92, EU:T:1994:69), cited by the applicant, that there is a principle of EU law according to which the solidarity levy can be applied only where the method for adjusting remuneration is itself applied.
139 Thus, in the case which gave rise to the judgment of 3 July 1985, Abrias and Others v Commission (3/83, EU:C:1985:283), the applicants indirectly challenged the legality of Regulation No 3821/81 which introduced a crisis contribution to Article 66a of the Staff Regulations. In paragraphs 15 and 21 of that judgment, the Court of Justice held that the agreement of the most representative trade-union organisations to bear some of the consequences of the particular difficulties of the economic and social situation that had emerged in the Community, by accepting an exceptional and single measure affecting remuneration, had been counterbalanced by the adoption of a method for adjusting remuneration which preserved the principle of parallelism according to which, in order to decide whether the remuneration of Community officials should be adjusted, in particular, any increases in salaries in the public service in the Member States was taken into account.
140 Similarly, in the case which gave rise to the judgment of 22 June 1994, Rijnoudt and Hocken v Commission (T‑97/92 and T‑111/92, EU:T:1994:69), the applicants challenged the legality of Council Regulation (ECSC, EEC, Euratom) No 3831/91 of 19 December 1991 amending the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Communities with a view to introducing a temporary contribution (OJ 1991 L 361, p. 7), which inserted Article 66a into the Staff Regulations for the purposes of introducing a temporary contribution. In respect of a plea alleging breach of the obligation to state reasons, the Court of First Instance restated the wording of the preamble to Regulation No 3831/91, according to which ‘it follow[ed] from the conclusions of the Consultation Committee that a temporary measure regarding remuneration paid by the Communities should be introduced in the form of a temporary contribution deducted at source, concomitantly with the adoption of a method establishing detailed rules for the application of Articles 64 and 65 of the Staff Regulations, as interdependent components of a comprehensive solution’.
141 Thus, it is clear from the judgments of 3 July 1985, Abrias and Others v Commission (3/83, EU:C:1985:283), and of 22 June 1994, Rijnoudt and Hocken v Commission (T‑97/92 and T‑111/92, EU:T:1994:69), that, in the past, the legislature adopted a general approach according to which the application of a specific levy affecting the remuneration of the officials and servants of the European Union formed the counterpart to the application of a method which permitted, in certain specific circumstances, certain remuneration to be adjusted, taking into account any increase in public salaries in the Member States of the European Union.
142 However, it should be noted that, within the limits of the broad discretion referred to in paragraph 135 above, the legislature was free to abandon, maintain or revise that earlier approach by providing, in Regulation No 1023/2013, that the solidarity levy would apply for a period during which the application of the method for adjusting remuneration was suspended.
143 Next, it is to be noted that, in Regulation No 1023/2013, the legislature has in fact established a link between the solidarity levy and the method for adjusting remuneration.
144 Thus, it is clear from the wording of Article 66a of the Staff Regulations, as amended by Article 1(46) of Regulation No 1023/2013, that the solidarity levy was introduced ‘in order to take account … of the application of the method for updating the remuneration and pensions of officials’.
145 Similarly, it should be made clear that, in the version prior to the entry into force of Regulation No 1023/2013, Article 15(2) of Annex XI to the Staff Regulations on the Rules for implementing Articles 64 and 65 of the Staff Regulations, provides that any proposal by the Commission to amend that annex before the end of the implementation period for that annex, that is, 31 December 2023, must include a proposal to revise Article 66a of the Staff Regulations.
146 It is also clear from Article 15(3) of Annex XI to the Staff Regulations, introduced by Regulation No 1023/2013, that as long as the Parliament and the Council have not adopted a regulation on the basis of a Commission proposal, that annex and Article 66a of the Staff Regulations are to continue to apply provisionally beyond 31 December 2023.
147 In addition, it should be noted that, as stated in paragraph 128 above, it is clear from recital 11 of Regulation No 1023/2013 that the Parliament and the Council justified the introduction of a solidarity levy as of 1 January 2014 by the need to balance the potential advantages for officials and other servants of the European Union of the application of the method for updating remuneration.
148 However, it cannot follow from recital 11 of Regulation No 1023/2013 or from the link between the measures in question, as set out in paragraphs 144 to 146 above, that there is a principle according to which the solidarity levy applies only concomitantly with the application of the method for adjusting remuneration, by playing a moderating role when that method confers an advantage on EU officials.
149 Suffice it to note that the legislature has, in exercising its broad discretion, expressly provided that the solidarity levy would be applied for a period during which the application of the method for adjusting remuneration was suspended. In that regard, it is clear from recitals 12 and 13 of Regulation No 1023/2013 that the legislature justified that choice on the basis of the objectives referred to in paragraph 129 above. The applicant has not shown that that choice constituted a manifest error of assessment or a misuse of power within the meaning of the case-law cited in paragraph 136 above.
150 Lastly, it should be made clear that, in so far as the applicant’s argument must be regarded as seeking to call into question the legality of Article 66a of the Staff Regulations, to the extent that it provided for the application of the solidarity levy with effect from 1 January 2014, on the ground that such an application would be contrary to Article 65(4) of the Staff Regulations, which provided for the suspension of the application of the method for updating remuneration, it is sufficient to point out, as the Court of Justice and this Court have already held concerning the introduction of an exceptional levy under Regulation No 3821/81, and the introduction of a temporary contribution by Regulation No 3831/91, that the legality of an amendment to the Staff Regulations introduced by the insertion of a new provision cannot be called into question on the basis of another provision of the Staff Regulations (judgments of 3 July 1985, Abrias and Others v Commission, 3/83, EU:C:1985:283, paragraph 20, and of 22 June 1994, Rijnoudt and Hocken v Commission, T‑97/92 and T‑111/92, EU:T:1994:69, paragraph 65).
151 Accordingly, the applicant’s argument based on the illegality of Article 66a of the Staff Regulations in that that article provided for the application of the solidarity levy with effect from 1 January 2014, whereas the application of the method for updating remuneration was suspended, must be rejected as unfounded.
152 In the light of the foregoing considerations, the first plea must be dismissed as unfounded.
The third plea in law alleging infringement of acquired rights
153 The applicant claims that the principle of the annual adjustment of remuneration has always been applied to her. She notes that while the method has always been fixed for limited periods of time, it has been systematically renewed with some adaptations. The applicant submits that the right of EU officials to benefit from a change in purchasing power parallel to that of national civil servants through application of the method for updating remuneration is an acquired right and an integral part of her remuneration, as well as a fundamental condition of her employment relationship. By suspending the application of the method for updating remuneration for 2 consecutive years, without providing for transitional measures, the Parliament and the Council infringed those acquired rights.
154 The Council and the Parliament contest the applicant’s arguments.
155 It should be made clear that by the present plea in law the applicant has challenged the legality of Article 65(4) of the Staff Regulations, introduced by Article 1(44) of Regulation No 1023/2013, which provides for the suspension of the method for updating remuneration in 2013 and 2014.
156 However, it should be noted that, as held in paragraphs 52 and 53 above, in order to challenge the decision determining her remuneration for January 2014, the applicant can only plead the illegality of Article 66a of the Staff Regulations, as amended by Article 1(46) of Regulation No 1023/2013, and is not entitled to plead the illegality of Article 65(4) of the Staff Regulations, introduced by Article 1(44) of Regulation No 1023/2013.
157 It follows that the second plea in law alleging infringement of acquired rights must be rejected as ineffective.
The fourth plea in law alleging failure to comply with the principle of proportionality
158 The applicant claims, in essence, that the suspension of the application of the method for updating remuneration for 2 years and the application of the solidarity levy during that period run counter to the principle of proportionality. The applicant submits that although the objectives pursued by those measures are legitimate, they are not appropriate for achieving those objectives. The applicant observes in that regard that the concomitant application of the method for updating remuneration and an exceptional levy had, in the past, been considered appropriate for achieving the same objectives as those set out in Regulation No 1023/2013. In addition, the applicant claims, first, that the economic crisis experienced by the Member States is not new nor worse than that which was experienced during the previous multiannual financial framework and, second, that the legislature failed to take account of the fact that Annex XI to the Staff Regulations, as amended by Regulation No 1023/2013, already contains the mechanisms to take account of adverse economic developments, since the adjustment method takes account of the negative developments in the level of remuneration of the civil service of the Member States and the application of the adjustment method is subject to a moderation clause and an exception clause. The applicant submits that the legislature could have adopted less restrictive measures capable of enabling the objectives laid down in Regulation No 1023/2013 to be achieved, namely providing for the application of the method for updating remuneration in 2013 and 2014 and linking the application of the solidarity levy to the application of that method. The applicant adds that the disproportionate nature of the contested measures is reinforced, in respect of the applicant, by the other measures introduced by Regulation No 1023/2013 aimed at reducing the costs of staff of the EU institutions, namely blocking the careers of administrators at grade AD 13, the reduction in travel time and the reduction in the reimbursement of travel expenses.
159 The Council and the Parliament contest the applicant’s arguments.
160 As a preliminary matter, it should be made clear that, in so far as the present plea seeks to demonstrate the disproportionate nature of the suspension of the application of the method for updating remuneration provided for in Article 65(4) of the Staff Regulations, introduced by Article 1(44) of Regulation No 1023/2013, that plea must be dismissed as ineffective for the same reasons as those set out in paragraphs 52 and 53 above.
161 It is therefore only necessary to examine whether the Parliament and the Council infringed the principle of proportionality by providing that the solidarity levy introduced by Article 66a of the Staff Regulations, as amended by Article 1(46) of Regulation No 1023/2013, would apply from 1 January 2014, whereas the application of the method for updating remuneration was suspended for 2013 and 2014, in accordance with Article 65(4) of the Staff Regulations, introduced by Article 1(44) of Regulation No 1023/2013.
162 In that regard, it should be noted that, by virtue of the principle of proportionality, the legality of EU rules is subject to the condition that the means employed must be appropriate to attainment of the legitimate objective pursued by those rules and must not go further than is necessary to attain it, and, where there is a choice of appropriate measures, it is necessary, in principle, to choose the least onerous (see, to that effect, judgments of 25 July 2018, Teglgaard and Fløjstrupgård, C‑239/17, EU:C:2018:597, paragraph 49 and the case-law cited, and of 11 December 2013, Andres and Others v ECB, F‑15/10, EU:F:2013:194, paragraph 317).
163 However, it is settled case-law that, in an area in which the EU legislature has a broad discretion consonant with the political responsibilities given to it by the Treaty, as is the case here, the review of proportionality must be confined solely to examining whether the measure at issue is manifestly inappropriate having regard to the objective which the competent institution is required to pursue (see, to that effect, judgments of 14 June 2017, TofuTown.com, C‑422/16, EU:C:2017:458, paragraph 46 and the case-law cited, and of 11 December 2013, Andres and Others v ECB, F‑15/10, EU:F:2013:194, paragraph 318).
164 In the present case, as stated in paragraph 129 above, it is clear from recitals 12 and 13 of Regulation No 1023/2013 that the choice by the legislature to apply the solidarity levy as of 1 January 2014 whereas the application of the adjustment method was suspended in 2013 and 2014 was intended to respond not only to the conclusions of the European Council of 7 and 8 February 2013, but also ‘to future budgetary constraints’, to ‘the unprecedented financial crisis and the particularly difficult social and economic context in the Member States and the Union as a whole’ and to show ‘solidarity on the part of the European civil service with the severe measures taken by Member States as a result of the unprecedented financial crisis’.
165 The fact remains that, in the light of those objectives, the choice to apply the solidarity levy for 1 year at the same time as the suspension of the application of the method for discounting remuneration in order to pursue the objectives mentioned above does not appear manifestly disproportionate.
166 That finding is not called into question by the applicant’s arguments.
167 First, as regards the applicant’s argument that Annex XI to the Staff Regulations, as amended by Regulation No 1023/2013, contains sufficient mechanisms to take account of unfavourable developments in the economic situation within the European Union, suffice it to note that that argument relates to the mechanisms for adjusting the method for updating remuneration in relation to changes in the level of remuneration of the civil services of the Member States.
168 However, as noted in paragraph 160 above, it should be noted that the arguments challenging the proportionality of the suspension of the adjustment of remuneration must be regarded as ineffective.
169 Second, as regards the applicant’s argument that the disproportionate nature of the application of the solidarity levy during the suspension of the method for updating remuneration is reinforced by other measures introduced by Regulation No 1023/2013, suffice it to note that the applicant cannot challenge the legality of those measures in the context of the plea of illegality raised in support of this action, in particular, their disproportionate nature, in so far as there is no connection between those measures and the decision determining the applicant’s remuneration for January 2014 to the extent that it applied Article 66a of the Staff Regulations, as amended by Article 1(46) of Regulation No 1023/2013, to her for the first time, which is the subject of the present action.
170 It must therefore be concluded that the applicant has not shown that the legislature overstepped its broad discretion by choosing to apply the solidarity levy during the suspension of the method for updating remuneration.
171 The third plea alleging infringement of the principle of proportionality must therefore be dismissed as, in part, ineffective and, in part, unfounded.
The seventh plea in law alleging infringement of the principle of the protection of legitimate expectations in that the legislature did not provide for transitional measures
172 The applicant claims that the principle of the protection of legitimate expectations is intended to protect serving officials from amendments made to provisions of the Staff Regulations which are of fundamental importance in their decision to become officials of the European Union, a decision which will have involved, inter alia, leaving their country of origin and social security system in most cases. The principle of the protection of legitimate expectations thus requires the legislature to avoid amending abruptly the legal and economic situation of serving officials and to provide for adequate transitional measures to enable them to adapt to the new situation, measures which should be sufficiently long in duration, tapered and appropriate having regard to the legal rules in force and to the legitimate concerns of officials. The applicant submits that the legislature infringed that principle by failing to provide for transitional measures as regards the suspension of the application of the method for updating remuneration and the application of the solidarity levy during that suspension. The legislature also allegedly infringed the principle of the protection of legitimate expectations by failing to provide for transitional measures in respect of the change in the rate of the solidarity levy from 6% to 7% from grade AD 15, step 2.
173 It should be noted that, as stated in paragraph 135 above, the legislature is free at any time to amend the Staff Regulations for the future to the extent which it considers to be consistent with the general interest and to adopt provisions of the Staff Regulations which are less favourable for the officials concerned. However, it has been specified in the case-law that it may do so only subject to providing a sufficiently long transitional period where necessary, without the officials concerned being able to rely on any legitimate expectations in maintaining the earlier provisions as against the application of the amendments (see, to that effect, judgment of 11 July 2007, Wils v Parliament, F‑105/05, EU:F:2007:128, paragraph 150 and the case-law cited).
174 It should also be noted that the requirement of a transitional period can be applicable only if EU officials and servants have acquired rights on which they may rely (see, to that effect, judgments of 22 June 2006, Belgium and Forum 187 v Commission, C‑182/03 and C‑217/03, EU:C:2006:416, paragraphs 147 to 149, and of 19 June 2007, Davis and Others v Council, F‑54/06, EU:F:2007:103, paragraph 82).
175 In that regard, the fact remains that the applicant cannot claim that Article 66a of the Staff Regulations, as amended by Article 1(46) of Regulation No 1023/2013, infringed her acquired rights in that that provision provided for a rate increased to 7% for officials in grade AD 15, step 2, and for those in higher grades and steps.
176 It is to be noted that the applicant’s situation was not likely to be affected by that provision since, first, as is clear from Article 66a of the Staff Regulations and from Article 15 of Annex XI to the Staff Regulations, in their version prior to the entry into force of Regulation No 1023/2013, the application of the ‘method for adjusting remuneration’ and of the ‘special levy’ ended on 31 December 2012, so that the ‘special levy’ was no longer applicable when the solidarity levy became applicable, namely on 1 January 2014 and, second, according to the case file, the applicant had not reached grade AD 15, step 2, by that date.
177 It follows that the applicant is not entitled to complain that the legislature did not provide for a transitional period for the application of a rate increased to 7% for officials in grade AD 15, step 2, and for those in higher grades and steps.
178 Similarly, the applicant could not claim an acquired right to have the solidarity levy applied only where the method for updating remuneration was itself applicable. Even if there had been such a link in the past between the ‘method for adjusting remuneration’ and the ‘special levy’ as provided for in Article 66a of the Staff Regulations and in Article 15 of Annex XI to the Staff Regulations, in their version prior to the entry into force of Regulation No 1023/2013, it should be noted that their application ended on 31 December 2012, so that the mechanism relied on by the applicant no longer existed when Regulation No 1023/2013 entered into force. The applicant cannot therefore rely on the existence of acquired rights in that regard.
179 It follows that the applicant is not entitled to complain that the legislature failed to provide for a transitional period for the application of the solidarity levy during a period in which the application of the method for updating remuneration was suspended.
180 Furthermore, as regards the applicant’s argument that the legislature should have provided for a transitional period for the application of Article 65(4) of the Staff Regulations providing for the suspension of the application of the method for updating remuneration in 2013 and 2014, the fact remains that, for the reasons previously set out in paragraphs 52 and 53 above, such an argument is ineffective in that it seeks, in reality, to call into question the legality of that provision.
181 It follows that the sixth plea alleging infringement of the principle of the protection of legitimate expectations must be dismissed as, in part, unfounded and, in part, ineffective.
182 Having regard to all of the foregoing considerations, the action must be dismissed in its entirety.
Costs
183 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
184 Since the applicant has been unsuccessful, she must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
185 In accordance with Article 138(1) of the Rules of Procedure, the institutions which have intervened in the proceedings are to bear their own costs. Consequently, the Parliament must bear its own costs.
On those grounds,
THE GENERAL COURT (Eighth Chamber)
hereby:
1. Dismisses the action;
2. Orders Ms Margarita Tàpias to pay the costs;
3. Orders the European Parliament to bear its own costs.
Delivered in open court in Luxembourg on 12 December 2019.
[Signatures]