JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(First Chamber)

28 October 2010

Case F-84/08

Maria Concetta Cerafogli

v

European Central Bank (ECB)

(Civil service — ECB staff — Action for damages seeking compensation for harm resulting directly from alleged illegality of conditions of employment and staff rules — Civil Service Tribunal’s lack of jurisdiction — Inadmissible — Release from service for staff representation — No adjustment of workload — Wrongful act)

Application: brought under Article 36.2 of the Protocol on the Statute of the European System of Central Banks and of the European Central Bank, annexed to the EC Treaty, in which Ms Cerafogli seeks an order requiring the ECB to pay her compensation in respect of the damage allegedly suffered principally on account of the ECB’s refusal to recognise the trade union organisations as having an effective role, of the discrimination she claims to have suffered on account, in particular, of her membership of the Staff Committee, and of the absence of any adjustment of her workload to take account of her release from service for staff representation.

Held: The ECB is ordered to pay the applicant the sum of EUR 5 000. The remainder of the application is dismissed. The ECB is ordered to bear its own costs and to pay one third of the applicant’s costs. The applicant is ordered to bear two thirds of her costs.

Summary

1.      Officials — Staff of the European Central Bank — Actions — Action directed against a measure of general application — Inadmissibility

(Art. 270 TFEU; Protocol on the Statute of the European System of Central Banks and of the European Central Bank, Art. 36.2; Staff Regulations, Art. 90; Conditions of Employment for Staff of the European Central Bank, Arts 41 and 42)

2.      Officials — Staff of the European Central Bank — Actions — Action for annulment not commenced in due time — Action for damages seeking an identical outcome — Inadmissibility

(Protocol on the Statute of the European System of Central Banks and of the European Central Bank, Art. 36.2; Staff Regulations, Arts 90 and 91; Conditions of Employment of the Staff of the European Central Bank, Art. 42)

3.      Officials — Staff of the European Central Bank — Actions — Action for damages directly linked to an action for annulment

(Conditions of Employment for Staff of the European Central Bank, Arts 41 and 42; Staff Rules of the European Central Bank, Arts 8.1 to 8.3.2)

4.      Officials — Staff of the European Central Bank — Representation — Protection of staff representatives

1.      It follows from Articles 41 and 42 of the Conditions of Employment for Staff of the European Central Bank that, as with their jurisdiction in civil service actions brought under Article 270 TFEU and Article 90 of the Staff Regulations of Officials, the Courts of the European Union have jurisdiction in actions under Article 36.2 of the Protocol on the Statute of the European System of Central Banks and of the European Central Bank only in so far as those actions concern individual measures. However, they may hear and determine actions relating to measures of general application, such as the Conditions of Employment or Staff Rules of the European Central Bank, provided that those actions seek annulment of the measures in question or seek an order for the European Central Bank to compensate for the damage directly resulting from the unlawfulness of those measures.

(see para. 45)

See:

T-20/01 Cerafogli and Others v ECB [2001] ECR-SC I‑A‑235 and II‑1075, para. 35

2.      The case-law relating to the Staff Regulations of Officials, according to which an action for damages is not admissible where the official seeks to obtain the same result as he would have obtained had he been successful in an action for annulment which he failed to commence in due time, must be applied, by analogy, to actions brought by staff of the European Central Bank under Article 36.2 of the Protocol on the Statute of the European System of Central Banks and of the European Central Bank and Article 42 of the Conditions of Employment for Staff of the European Central Bank. An official who has failed to bring, within the periods laid down in Articles 90 and 91 of the Staff Regulations of Officials, an action for annulment of a measure alleged to have adversely affected him cannot repair that omission and thus obtain further time for bringing proceedings by lodging a claim for compensation for the damage caused by that measure.

(see para. 50)

See:

346/87 Bossi v Commission [1989] ECR 303, para. 32

T-20/92 Moat v Commission [1993] ECR II‑799, para. 46; T-147/04 Ross v Commission [2005] ECR-SC I‑A‑171 and II‑771, para. 48

3.      Although, under Article 8.2 of the European Central Bank Staff Rules, a member of the Bank’s staff may bring an action before the courts only after exhausting the pre-litigation procedure, which involves two stages: a request for a pre-litigation review and then a preliminary complaint, neither Articles 41 and 42 of the Conditions of Employment for Staff of the European Central Bank nor Articles 8.1 to 8.3.2 of the European Central Bank Staff Rules contain any provision laying down a specific application procedure, prior to those two stages, in cases where the Bank has not previously taken any decision that is open to review.

It follows that an action for damages linked to an action for annulment is admissible even where the applicant has not submitted a claim for compensation for that harm to the European Central Bank prior to submitting his request for a pre-litigation review.

(see paras 54-55)

See:

F-130/07 Vinci v ECB [2009] ECR-SC I‑A‑1‑307 and II‑A‑1‑1651, para. 51

4.      In failing to adjust the workload of a member of its staff to take account of his release from service in order to carry out staff representation duties, which may prevent him from fulfilling those duties in entirely satisfactory conditions, the European Central Bank commits a wrongful act such as to render it liable.

(see para. 58)