Paulini v ECB (Staff Regulations of officials and Conditions of Employment of other servants - Judgment) [2018] EUECJ T-764/16 (28 February 2018)

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(Civil service — ECB staff — Remuneration — Annual salary and bonus review — Lawfulness of the guidelines — Calculation method — Taking into account of sickness leave — Taking into account of activities of a staff representative — Principle of non-discrimination)

Jörn Paulini, member of staff of the European Central Bank, residing in Frankfurt am Main (Germany), represented initially by L. Levi and M. Vandenbussche, and subsequently by L. Levi and A. Tymen and finally by L. Levi, lawyers,

European Central Bank (ECB), represented by F. von Lindeiner and D. Camilleri Podestà, acting as Agents, and B. Wägenbaur, lawyer,

ACTION on the basis of Article 270 TFEU seeking, firstly, the annulment of the decision of the ECB, sent to the applicant on 15 December 2015 and amended on 10 February 2016, concerning the 2015 annual salary and bonus review and, secondly, compensation for the loss which the applicant allegedly suffered as a result of that decision,

composed of A.M. Collins (Rapporteur), President, R. Barents and J. Passer, Judges,

1 The performance of the staff of the European Central Bank (ECB) is assessed annually in two separate procedures: the annual salary and bonus review (‘the ASBR’) and the appraisal. For the reference period, from 1 September 2014 to 31 August 2015 (‘the reference period’), the ASBR and the link between it and the appraisal are explained in a document entitled ‘The Annual Salary and Bonus Review’ (‘the 2015 ASBR guidelines’).

– concerning the objectives of the ASBR: ‘the ECB’s reward policy has been created with the objective of rewarding an individual’s performance and achievements by linking their salary level to their contribution to the success of the ECB in achieving its objectives’;

– concerning salary increases: ‘salary increases are used to recognise a staff member’s personal development and added contribution over the past year, with an expectation that this would be sustained into the future. The decisions on individual salary increases should be based on the above mentioned principles and properly explained’;

– concerning the level of awards and the spread over the salary bands: ‘salary awards are from 0 up to 14 steps. Every point equals a salary raise of approximately 0.25%. A minimum of 9 steps will be awarded to 20% (+/- 5%) of staff. Staff members whose performance is unsatisfactory shall be awarded 0 salary steps. A salary award of 0 steps may also be awarded to staff members who performed satisfactorily, but did not develop and/or [did not make] an additional contribution to the organisation compared to the previous performance period relative to his or her level in the salary band and to peer-level performance’;

– concerning the indirect link between the ASBR and the appraisal: ‘the ASBR and the appraisal are two separate exercises with different objectives. As a result, there is no mechanistic link between them, nor a requirement that the appraisal [be] completed before the ASBR is undertaken. Nevertheless, conducting the individual appraisals in advance of ASBR decisions being made is in line with best practice and is the preferred approach.

The appraisal exercise is directed at recognising areas of achievement and identifying areas of performance upon which the individual in his or her specific situation can improve, irrespective of how the staff member has performed relative to other staff members. The appraisal has thus the character of a “normative” exercise. It refers solely to the achievements of the individual against the individual objectives within the specific individual context, and does not carry a comparative notion.

The ASBR on the other hand, must, in view of the budgetary constraints and bearing in mind the principle of reward based on merit, consider an individual’s contribution relative to others within the same business area, taking into account the level of contribution that can be expected in view of the individual’s position in the salary band. Consequently, a “good” appraisal of a staff member whose salary is high in the relevant band should generally result in a lower salary award than an equally “good” appraisal for a staff member in the lower part of the same salary band. The ASBR has thus the character of a “comparative” exercise.

The ASBR is therefore a separate assessment independent from the appraisal. As a result, a direct read across from one exercise to the other is not possible. Although there is no direct link, the overall messages from the Appraisal and the ASBR should be consistent’;

– concerning elected members of the Staff Committee: ‘elected members of the Staff Committee are also eligible for the ASBR’ and ‘a special regime exists to ensure that elected members of the ECB Staff Committee ... as a group receive awards for their work as elected members that are at least in line with the average’.

3 Separately from the ASBR, the performance of members of staff of the ECB is appraised in an annual appraisal exercise which is designed as a tool both for staff management and for the personal development of the members of staff of the ECB. That procedure takes the form of a discussion, between the member of staff and his or her line manager, concerning the performance achieved in the preceding period, in the light of the objectives set for that period and of expectations for the period to come. Each year, that appraisal leads to the production of an appraisal report. The rules of the appraisal procedure are set out in the appraisal guide.

4 The performance of members of staff of the ECB in their activities as staff representatives is not subject to an annual appraisal.

5 Under Article 48 of the Conditions of Employment of staff of the ECB, adopted by Decision 1999/330/EC of the European Central Bank of 9 June 1998 on the adoption of the Conditions of Employment for Staff of the European Central Bank, as amended on 31 March 1999 (OJ 1999 L 125, p. 32; ‘the Conditions of Employment’), a Staff Committee whose members are elected by secret ballot is to represent the general interests of all members of staff in relation to contracts of employment; staff regulations and remuneration; employment, working, health and safety conditions at the ECB; social security cover and pension schemes.

6 Pursuant to Article 51 of the Conditions of Employment, no prejudice may be caused to the professional situation or career prospects of staff representatives on account of their fulfilment of their duties.

7 The formula for calculation of the salary increase under the ASBR applicable to members of staff for their activities in the Staff Committee is set out in Decision ECB/2008/NP22 of 18 December 2008 (‘the 2008 decision’). In accordance with Article 1(1) of that decision:

‘The award levels for individual salary increases for members of staff in relation to their activities as Staff Committee members shall be calculated on the basis of the following formula: Staff Committee work dispensation (X%) x Default award factor (2%) [(“the formula in the 2008 decision”)]’.

‘If for the group of the Staff Committee members, the aggregated average percentage of the individual salary increases in relation to their activities as Staff Committee members and their activities in their respective business areas is below the average percentage of the salary increases for all ECB members of staff, the salary increases for the Staff Committee members shall be increased by the factor required to bring the average percentage of their individual salary increases to the level of the average percentage of the salary increases for all ECB members of staff.’

9 Under Article 9.1.2 of the Staff Rules, a staff representative is to be considered incapacitated if he or she is unable to perform his or her duties due to illness or accident within the meaning of Article 31 of the Conditions of Employment.

10 Article 9.1.2a of the Staff Rules adds that, without prejudice to Article 9.1.2 and in order to ensure continued staff representation in the event of the incapacity of a staff representative for a period of between one and four months, the incapacitated staff representative may reach agreement with the other staff representatives that his or her absence is to be covered through the temporary reallocation of his or her work dispensation to one or more of them. This agreement is to be communicated in writing by the Staff Committee to the Director General of the Directorate General Human Resources, who will then discuss the operation of this reallocation with the heads of the business area of the staff representatives whose work dispensation is to be extended. Afterwards, the Director General of the Directorate General Human Resources will communicate the effective date of the temporary time reallocation to the Staff Committee. Any agreed temporary reallocation is to continue until a new staff representative is appointed in accordance with the election rules, or until the date on which the incapacitated staff representative resumes his or her duties, whichever is earlier. Should an incapacitated staff representative return to work after being incapacitated for a period exceeding four months, he or she is to be included on the reserve list for the Staff Committee, with due regard being given to the votes he or she received in the latest election.

11 The applicant, Mr Jörn Paulini, took up his post with the ECB on 1 April 2001. He became a member of the ECB Staff Committee on 12 June 2014. He was re-elected in the Staff Committee elections which took place in 2016.

12 During the reference period, because of sick leave and partial invalidity, the applicant’s working time was reduced:

– by 20% (which means a working time of 80%) from 1 September 2014 to 30 June 2015;

– by 40% (which means a working time of 60%) from 1 July 2015 to 31 August 2015.

13 During the reference period, the applicant also had the benefit of a working time dispensation of 50% in respect of his activities as a Staff Representative, subject to the following exceptions:

– for two months during the reference period, namely in January and February 2015, because of his illness, the Staff Committee decided to transfer all the applicant’s working time dispensation to other members of the Staff Committee and, consequently, no working time dispensation was granted to the applicant during that period;

14 On that basis, the ECB’s Directorate General Human Resources calculated the applicant’s working time dispensation at an average of 42.5% over the reference period. Considering his partial disability and sick leave, his average working time in his business area over the reference period was further reduced to approximately 20.8%.

15 On 8 September 2015, the applicant received his 2015 annual appraisal report. The report noted that his time allocation for the business area was very limited. Nonetheless, it did not indicate any performance concerns or shortcomings.

16 Following the ASBR covering the reference period (‘the 2015 ASBR’), the applicant was informed on 15 December 2015 that he had been awarded 0 salary steps for his activities in his business area. In addition, by application of Article 1(1) of the 2008 decision, he was awarded 3.4 salary steps for his activities as a Staff Representative. This overall outcome was rounded to 3 steps.However, pursuant to Article 1(2) of the 2008 decision, which requires that the average percentage of ASBR related salary increases amongst staff representatives increases to the level of the average percentage of the salary increases for all ECB members of staff, an adjustment factor was applied. On 10 February 2016, that overall outcome was rounded up to 4 steps, implemented retroactively from 1st January 2016 (‘the contested decision’). In that regard, it is appropriate to note that the salary increases are expressed in salary steps, the number of which is between 0 and 14, each corresponding to 0.25% of the salary.

17 An administrative review of the contested decision was requested, which was rejected by the ECB, followed by the initiation of the grievance procedure, which was also rejected by the ECB.

– order the ECB to compensate him for the material damage suffered, estimated at EUR 3 585.10;

– order the ECB to compensate him for the non-material damage suffered, estimated at EUR 10 000;

20 The General Court (Eighth Chamber) decided, pursuant to Article 106(3) of the Rules of Procedure of the General Court, to rule on the action without an oral part of the procedure.

21 In support of his action, the applicant raises three pleas in law, each divided into two parts.

22 The first plea in law alleges infringement of the principle of non-discrimination, of Article 51 of the Conditions of Employment and of Articles 12 and 21 of the Charter of Fundamental Rights of the European Union (‘the Charter’) by the 2015 ASBR guidelines. The applicant also alleges, in the alternative, that the contested decision is illegal in so far as it violates the 2015 ASBR guidelines and is vitiated by a manifest error of assessment.

23 The second plea in law alleges infringement of the 2008 decision in so far as, in the contested decision, the ECB failed to neutralise the applicant’s absence on sick leave when it calculated his award under the ASBR for his activities as a member of the Staff Committee. In the alternative, the applicant claims that the 2008 decision disregards the principle of non-discrimination, Articles 12 and 21 of the Charter and Article 51 of the Conditions of Employment, in that it does not permit such neutralisation.

24 By his third plea in law, the applicant claims, primarily, that the contested decision infringes the 2008 decision in that the latter does not provide a legal basis for the rounding of steps in the ASBR for members of the Staff Committee and, in the alternative, that the 2008 decision is manifestly neither justified nor adequate on that point if it does actually permit such rounding.

25 The ECB contends that the first part of the first plea in law, namely that alleging that the 2015 ASBR guidelines are illegal, and the second part of the second plea in law, namely that alleging that the 2008 decision is illegal, and the third plea in law in its entirety are inadmissible. Moreover, it disputes the merits of the second part of the first plea in law and of the first part of the second plea in law.

The first part of the first plea, alleging that the 2015 ASBR guidelines are illegal

26 The ECB argues that, for the plea of illegality raised by the applicant to be admissible under Article 277 TFEU, the applicant must indicate exactly which provisions of the 2015 ASBR guidelines he regards as illegal. By failing to do so, he prevents the establishment of a link between the contested measure and the provision forming the subject matter of the plea of illegality.

27 The applicant is of the view, firstly, that it is not relevant to require an indication of the exact provisions of the 2015 ASBR guidelines of which the legality is disputed, since it is the absence of provisions accommodating the specific situation of staff members with limited availability which makes the 2015 ASBR guidelines illegal, and, secondly, that the case-law merely requires that the general measure of which the illegality is alleged be applicable to the case and that there be a legal link between that measure and the individual contested decision. He argues that those two conditions are fulfilled in the present case.

28 As a preliminary point, it should be borne in mind that, in accordance with settled case-law, Article 277 TFEU expresses a general principle conferring upon any party to proceedings the right to challenge, for the purpose of obtaining the annulment of a decision of direct and individual concern to that party, the validity of previous acts of the institutions which, although they are not in the form of a regulation, form the legal basis of the decision under challenge, if that party was not entitled under Article 263 TFEU to bring a direct action challenging those acts, by which it was thus affected without having been in a position to ask that they be declared void (see judgment of 20 September 2011, Regione autonoma della Sardegna and Others v Commission, T‑394/08, T‑408/08, T‑453/08 and T‑454/08, EU:T:2011:493, paragraph 206 and the case-law cited).

29 Since the purpose of Article 277 TFEU is not to enable a party to contest the applicability of any act of general application in support of any action whatsoever, the scope of a plea of illegality must be limited to what is necessary for the outcome of the proceedings. 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, to that effect, judgment of 26 October 1993, Reinarz v Commission, T‑6/92 and T‑52/92, EU:T:1993:89, paragraph 57 and the case-law cited).

30 It is also settled case-law that the existence of such a connection may be deduced from the finding that the contested individual decision rests in essence on a provision of the measure whose legality is challenged, even if the latter did not formally constitute the legal basis thereof (see, to that effect, judgment of 20 November 2007, Ianniello v Commission, T‑308/04, EU:T:2007:347, paragraph 33).

31 Moreover, the General Court has held that guidelines, although not constituting the legal basis of the act under challenge may be contested by objection of illegality if they have served for the adoption of that act (see, to that effect, judgment of 20 September 2011, Regione autonoma della Sardegna and Others v Commission, T‑394/08, T‑408/08, T‑453/08 and T‑454/08, EU:T:2011:493, paragraph 209).

32 Finally, it follows from the case-law that an act of general application within the meaning of Article 277 TFEU is an act which applies to objectively determined situations and produces legal effects with respect to categories of persons envisaged in the abstract (see, to that effect, judgments of 27 March 1990, Cargill and Others v Commission, C‑229/88, EU:C:1990:138, paragraph 18, and of 21 October 2010, Agapiou Joséphidès v Commission and EACEA, T‑439/08, not published, EU:T:2010:442, paragraph 53).

33 In the present case, it is appropriate to find that the 2015 ASBR guidelines are an act of general application since they apply to a category of persons envisaged in the abstract, namely the members of staff of the ECB on permanent or temporary contracts, when they are in an objectively determined situation, namely when they are in the salary bands between A and L and have at least three months of service during the reference period.

34 Furthermore, it is not in dispute that the contested decision was adopted in application of the principles laid down by the 2015 ASBR guidelines. Accordingly, there is a direct legal connection between the two acts. In addition, there is no doubt that the 2015 ASBR guidelines apply to the situation at issue, since it is a dispute concerning the appraisal of a staff member of the ECB under the ASBR.

35 Finally, contrary to the submissions of the ECB, the fact that the applicant calls into question the absence of certain provisions in the 2015 ASBR guidelines and, in consequence, cannot indicate precisely which provisions of the 2015 ASBR guidelines he challenges does not prevent the plea of illegality from being admissible (see, to that effect, judgment of 14 February 2007, Simões Dos Santos v OHIM, T‑435/04, EU:T:2007:50, paragraph 119).

36 It follows that the first part of the first plea, alleging the illegality of the 2015 ASBR guidelines, is admissible.

37 The applicant argues that the 2015 ASBR guidelines are illegal, firstly, in that they place at a disadvantage those members of staff who benefit from sick leave, by comparing their performance with that of other members of staff working full time, which prevents them from being appraised positively, and, secondly, in that they do not take into consideration absences due to the activity of a staff representative. The 2015 ASBR guidelines thus infringe the principle of non-discrimination, Article 51 of the Conditions of Employment and Articles 12 and 21 of the Charter.

39 It must be borne in mind, first of all, that it is settled case-law that the principle of non-discrimination, which is a general principle of EU law, requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see, to that effect, judgment of 14 September 2010, Akzo Nobel Chemicals and Akcros Chemicals v Commission, C‑550/07 P, EU:C:2010:512, paragraphs 54 and 55 and the case-law cited).

40 It must also be recalled that persons on sick leave are not in the same situation as those who are not on sick leave (see, to that effect, judgment of 11 July 2006, Chacón Navas, C‑13/05, EU:C:2006:456, paragraph 54). The same is true of staff representatives, who are not in the same situation as the other members of staff who do not carry out such duties (judgment of 17 December 2015, Bowles v ECB, F‑94/14, EU:F:2015:156, paragraph 54).

41 In that context, it must be pointed out that, in point 4 of the 2015 ASBR guidelines, it is expressly stated that periods of absence do not as such constitute a discriminating element for the purpose of the ASBR. Thus, under those guidelines, periods of absence, an expression which, according to the ECB, means any such period regardless of its reason, nature and length, cannot result in discrimination against the member of staff concerned.

42 Furthermore, as regards the alleged discrimination against the members of the Staff Committee, its absence is confirmed by the fact that 2015 ASBR guidelines expressly provide that those members are also eligible for the ASBR and that a special regime exists to ensure that they receive a reward for their work as elected members (see paragraph 2, last indent, above).

43 It follows therefrom that the 2015 ASBR guidelines do not infringe the principle of non-discrimination, Articles 12 and 21 of the Charter or Article 51 of the Conditions of Employment.

44 The applicant’s other arguments, which will be considered below under the second part of the first plea in law, do not call that finding into question.

45 Consequently, the first part of the first plea in law must be rejected as unfounded.

The second part of the first plea, alleging infringement of the 2015 ASBR guidelines

46 The applicant disputes the legality of the contested decision in the light of the 2015 ASBR guidelines, arguing that the ECB used the periods of absence as a discriminating element. According to him, despite his good performance and the fact that his appraisals stated that he could not have done more because of his limited availability, the fact that he was awarded 0 steps by his business area could be explained only by his limited availability. The contested decision is vitiated by a manifest error of assessment since, without any discriminating element based on his absence, the applicant’s contribution in the time during which he was available for work should have led to a higher ASBR award.

48 It must be recalled as a preliminary point, that reporting officers enjoy a wide discretion when appraising the work of the officials upon whom they must report. Furthermore, the ASBR involves the taking into account of economic factors and financial variables, in respect of which the ECB also enjoys a wide discretion. Consequently, the judicial review which the General Court carries out in the matter can be only limited, and is restricted to ensuring that the procedure is conducted in a regular manner, the facts are materially correct, and there is no manifest error of assessment or misuse of powers (see, to that effect, judgments of 9 June 2005, HLH Warenvertrieb and Orthica, C‑211/03, C‑299/03 and C‑316/03 to C‑318/03, EU:C:2005:370, paragraph 75, and of 25 October 2005, T‑96/04 Cwik v Commission, EU:T:2005:376, paragraph 41).

49 An error of assessment may only be said to be manifest where it may easily be detected in the light of the criteria to which the legislature intended the exercise of the administration’s decision-making powers to be subject (see judgment of 16 May 2013, Canga Fano v Council, T‑281/11 P, EU:T:2013:252, paragraph 41 and the case-law cited).

50 Thus, in order to establish that the ECB committed a manifest error in assessing the facts such as to justify the annulment of the contested decision, the evidence, which it is for the applicant to adduce, must be sufficient to make the administration’s assessment of the facts in its decision implausible. In other words, if, despite the evidence adduced by the applicant, the assessment of the facts by the ECB may nonetheless be regarded as plausible, the plea alleging a manifest error of assessment must be rejected (see judgments of 29 September 2011, Kimman v Commission, F‑74/10, EU:F:2011:171, paragraph 92 and the case-law cited, and of 12 February 2014, Bodson and Others v EIB, F‑83/12, EU:F:2014:15, paragraph 162 and the case-law cited).

51 The second part of the first plea must be considered in the light of those criteria.

52 As a preliminary point, it is appropriate to note, as does the ECB, that the applicant was awarded 0 steps because, despite his satisfactory performance, he had neither developed nor contributed to the organisation compared to the preceding period, having regard to his position in the salary band and his colleagues’ level of performance. In principle, and absent any manifest error, such an award can be compatible with the assessment that the applicant’s contribution to the work of his division was marginal and his personal development in the areas relevant to the work of the division remained static, including in comparison with other members of staff.

53 The applicant relies on his appraisal reports for 2014 and 2015 to show that the contested decision did not correctly appraise his contribution to the activities of his division. In that regard, firstly, it is appropriate to note that the appraisal report for 2014 is not directly relevant to the 2015 ASBR. Secondly, in accordance with the 2015 guidelines (see point 2, fourth indent, above), the link between the annual appraisal for 2015 and the 2015 ASBR is indirect, since the annual appraisal relates solely to the results achieved by the person concerned, appraised in the light of the individual objectives within the specific individual context, without any comparison (see, to that effect, judgment of 27 September 2011, Whitehead v ECB, F‑98/09, EU:F:2011:156, paragraph 44). Thirdly, as stated in the 2015 ASBR guidelines, ASBR decisions result from a comparative assessment between colleagues. Those factors restrict the relevance of the appraisal reports as regards showing discrimination against the applicant in the 2015 ASBR. In any event, it must be found that the 2015 appraisal, which stated that the applicant had a limited availability to his business area but did not state that his performance was unsatisfactory, can, in principle and absent any manifest error, be compatible with an award of 0 steps, given that such an award may be made to members of staff whose performance is satisfactory.

54 According to the applicant, statistics show that the majority of staff members with a substantial working time dispensation received a fairly small number of points from their business area. Thus, the applicant has annexed to the application a table showing the number of steps of 12 members of staff, their availability to their business area and their availability for their duties as members of the Staff Committee. It is appropriate to note that, even by removing, as the applicant did, the allegedly inconsistent number of 9 steps for a person with only 13.3% availability to his business area, those statistics are unconvincing, given that they do not show a clear trend and are taken from a very small sample.

55 In addition, the applicant produces two tables showing the ASBR steps broken down per salary band cluster and on the basis of part or full-time working arrangements for 2014 and 2015. According to him, those tables show that the average number of steps awarded to staff members working less than full-time is lower than the average number of steps awarded to those working full-time.

56 It must be noted that those two tables do not show a clear trend, given that, on the one hand, persons working between 75% and 90% attained 6 steps, while those working full-time attained 5.98 steps in 2014 and, on the other, the trend shown by the data corresponding to salary bands E to L in the table for 2014 and bands I to L in the table for 2015 do not support the applicant’s line of argument, because there is no increase in steps between the categories of persons working between 75% and 90% and those working full-time. Moreover, contrary to the applicant’s submissions, the differences between the categories of persons working between 50% and 70% and those working full-time are relatively minor and those slight differences could be explained by other factors, for example the broad variety of salary bands and working arrangements.

57 Furthermore, the information provided by the applicant does not show either that his periods of absence were used as a discriminating element in the ASBR, or that the application of the 2015 ASBR guidelines would make it impossible for a member of staff in the applicant’s situation to obtain a higher award. The applicant does not refute the assertion made by the ECB that other members of staff in the same situation as him have been able to obtain higher steps and that, accordingly, that is not impossible in the context of the appraisal provided for in the 2015 ASBR guidelines.

58 The applicant’s argument that the activity as staff representative should be taken into account as a positive factor in the ASBR as regards the business area, to avoid any disadvantage to persons who undertake that activity, is unconvincing. That would amount to giving an advantage to staff representatives over other members of staff by compensating them twice, once on the basis of the 2008 decision and again under the ASBR.

59 The fact that the ECB took into consideration the requirement not to discriminate on the basis of the limited availability of certain members of staff is apparent from the letters which it sent to the applicant on 22 April and 24 August 2016, annexed to the application. In its letters, the ECB also confirmed that it had taken account of the applicant’s particular situation, since it compared only his actual working time with what another member of staff could have achieved had he or she had worked for a similar period.

60 Consequently, it must be held that the applicant has not shown that the contested decision was vitiated by a manifest error of assessment in the light of the 2015 ASBR guidelines, which were therefore not disregarded. The second part of the first plea in law must therefore be rejected. It follows that the first plea in law must be rejected in its entirety.

The second plea in law, alleging infringement of the 2008 decision and, in the alternative, the illegality of that decision

61 Principally, the applicant alleges infringement of the contested decision in so far as the ECB failed to neutralise the applicant’s absence on sick leave when it calculated his award under the ASBR for his activities as a member of the Staff Committee using the formula in the 2008 decision. Accordingly, the contested decision infringes that decision, the principle of non-discrimination, Articles 12 and 21 of the Charter and Article 51 of the Conditions of Employment. In the alternative, the applicant claims that the 2008 decision is illegal.

First part of the second plea in law, alleging infringement of the 2008 decision

62 With regard to the first part, despite the fact that, in his application, the applicant complains of an alleged infringement of the 2008 decision, it is apparent from his reply that he accepts that the formula in the 2008 decision was properly applied, but that he is of the opinion that the ECB should have altered its application to avoid a discriminatory effect.

63 As a preliminary point, it must be recalled that, during the reference period, the applicant was granted a working time dispensation of 50% to take account of his staff representation activities, with the following exceptions: on the one hand, in August 2015, a working time dispensation of 60% was granted to him and, on the other, in January and February 2015, because of his illness, the Staff Committee decided to transfer his entire working time dispensation to other members of the Staff Committee and, consequently, no working time dispensation was granted to him during that period. That decision of the Staff Committee had two consequences. First, the availability of the applicant to his business area in January and February 2015 was increased from 30% to 80% and, second, the applicant’s working time dispensation for his staff representation activities during the reference period was reduced from an annual average of 51% to one of 42.5%.

64 Firstly, the applicant argues that during the time he was available he performed at the same level as any other member of the Staff Committee without sick leave or part-time work due to invalidity. Accordingly, he was penalised for his sick leave, despite a contribution equal to that of the other members of the Staff Committee.

65 Secondly, the applicant claims that he has been penalised twice for his sick leave: once in the context of his contribution to his business area and again in the context of his activity as a member of the Staff Committee, since in both cases he received a lower award under the ASBR because of his limited availability.

66 Thirdly, the applicant submits that the two months of sick leave should have been neutralised for the calculation of his award under the ASBR as a staff representative, even though his working time dispensation was then distributed to other colleagues by the Staff Committee in the interest of the continuity of the service. According to the applicant, it was only because of his state of health that he did not benefit from any working time dispensation during those two months. The situation was not that he did not benefit from that working time dispensation because he went back to his business area on a full-time basis. In his view, it is discriminatory not to neutralise that period, since he was unable to compensate for the period during which he was not able to contribute to the Staff Committee activities by contributing to his business area. The application of the formula in the 2008 decision, as implemented in the contested decision, led to a situation where the applicant, in addition to being sick, was the victim of discrimination for that reason, since his absence due to illness was taken into account in the calculation of his contribution as a staff representative.

68 It must be held that the applicant’s argument that he was penalised for his sick leave, despite a contribution equal to that of the other members of the Staff Committee, cannot succeed.

69 First of all, in accordance with recital 5 of the 2008 decision, the individual salary and bonus awards under the ASBR for the activities of members of staff in their capacity as Staff Committee members should be clearly distinguished from their activities within their respective business areas and be prorated to the amount of time allocated to their work as Staff Committee members.

70 It is clear that that principle, which has not been challenged by the applicant, applies in the same way to all the members of the Staff Committee.

71 Next, it is appropriate to note that, if the ECB had amended the formula in the 2008 decision or had not followed the opinion of the Staff Committee concerning the applicant’s working time dispensation, it would have infringed the principle laid down in recital 5 of the 2008 decision and would have favoured the applicant by regarding him as available to his business area and, at the same time, setting off the period during which his work as a member of the Staff Committee had been allotted to someone else. The applicant has not submitted any reason to justify such an advantage.

72 The applicant’s line of argument that he has been penalised twice for his limited availability cannot succeed, since it is based on the arguments put forward in support of the first plea in law, alleging the illegality of the contested decision owing to the alleged discrimination arising from the decision to award him 0 steps for his contribution to his business area. Since that plea has been rejected, that line of argument, as well as the argument that the applicant could not set off the period during which he was not able to contribute to the Staff Committee activities by a contribution to his business area, is rejected on the same grounds as above.

73 It follows that the first part of the second plea must be rejected as unfounded.

Second part of the second plea in law, alleging the illegality of the 2008 decision

74 As regards the second part of the second plea in law, raised in the alternative, by which the applicant contests the legality of the 2008 decision, it is appropriate, having regard to the case-law set out in paragraphs 28 to 30 above, to note that, contrary to the submissions of the ECB, that part is admissible since the contested decision was adopted by application of the 2008 decision, which is an act of general application which applies to situations that are determined objectively and have legal effects with regard to categories of persons referred to in a general and abstract manner. Moreover, and contrary to the submissions of the ECB, it is apparent from the application that the applicant challenges the formula in the 2008 decision for the calculation of the salary increases of the members of the Staff Committee.

75 However, it is clear that the second part of the second plea in law must be rejected as unfounded for the same reasons as the first part.

76 By his third plea in law, the applicant claims, primarily, that the contested decision infringes the 2008 decision in that the latter provides no legal basis for the rounding of steps in the ASBR for members of the Staff Committee. In the alternative, he argues that the 2008 decision is manifestly neither justified nor adequate on that point if it does permit such rounding.

78 It is settled case-law that an action for annulment brought by a natural or legal person is admissible only in so far as the applicant has an interest in the annulment of the contested measure. Such an interest presupposes that the annulment of the measure must of itself be capable of having legal consequences and that the action must be likely, if successful, to procure an advantage for the party who brought it (see, to that effect, judgments of 25 March 1999, Gencor v Commission, T‑102/96, EU:T:1999:65, paragraph 40, and of 18 March 2010, Centre de Coordination Carrefour v Commission, T‑94/08, EU:T:2010:98, paragraph 48 and the case-law cited).

79 In that regard, it is necessary to revisit the method of calculation used to set the step in the ASBR in order to assess its effect on the applicant’s situation. Under the formula in the 2008 decision, the calculation was as follows: 42.5% (time dispensation) x 2% (default award factor) = 0.85%, which corresponds to an increase of 3.4 steps, where 0.25% equates to 1 step. That number was rounded to 3 steps. The ECB then made an adjustment. Although the applicant seems to oppose such an interpretation of the facts, it is clear from both the application and its Annex 12 that the adjustment of the step obtained by the applicant amounted to the addition of 0.35 steps, bringing the total to 3.75 steps. Finally that total was rounded to 4 steps.

80 Since the rounding of the steps is in the applicant’s favour, annulment of the contested decision cannot procure him any advantage in that regard. Consequently, the applicant’s arguments concerning the alleged illegality of the contested decision must be rejected as inadmissible.

81 In so far as the applicant’s arguments concern a new decision which would result from the enforcement of a possible judgment of the Court annulling the contested decision, it must be held that the settled case-law prohibits the EU Courts from ruling on hypothetical future decisions (judgments of 6 September 2013, Export Development Bank of Iran v Council, T‑4/11 and T‑5/11, not published, EU:T:2013:400, paragraph 32, and of 6 September 2013, Bank Refah Kargaran v Council, T‑24/11, EU:T:2013:403, paragraph 31). It follows that the applicant’s arguments for the annulment of a hypothetical future decision and, consequently, the first part of the third plea in its entirety, are inadmissible.

82 Having regard to the inadmissibility of the first part of the third plea, it is also necessary to reject as inadmissible the second part of the third plea, put forward in the alternative, concerning the alleged illegality of the 2008 decision (see, to that effect, judgment of 7 July 1987, L’Étoile commercial et CNTA v Commission, 89/86 and 91/86, EU:C:1987:337, paragraph 22 and the case-law cited).

83 Since the first and second pleas in law are unfounded and the third is inadmissible, the claim for annulment must be rejected.

84 As a consequence of the alleged illegality of the contested decision, the applicant claims to have suffered material harm assessed at EUR 3 585.10 and non-material harm assessed at EUR 10 000.

86 It must be recalled that, in accordance with settled case-law, claims for compensation, submitted jointly with claims for annulment which have no foundation in law, are themselves without any foundation in law if they are closely linked to the claims for annulment (see judgment of 30 September 2003, Martínez Valls v Parliament, T‑214/02, EU:T:2003:254, paragraph 43 and the case-law cited).

87 The applicant’s claims for compensation, submitted jointly with the claims for annulment, are based on the illegality of the contested decision and are therefore closely linked to the claims for annulment. Since those claims have been rejected, the claims for compensation must consequently also be rejected.

89 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.

90 Since the applicant has been unsuccessful, he must be ordered to pay the costs, in accordance with the form of order sought by the ECB.

2. Orders Mr Jörn Paulini to bear his own costs and pay the costs incurred by the European Central Bank.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Paulini v ECB (Staff Regulations of officials and Conditions of Employment of other servants - Judgment) [2018] EUECJ T-764/16 (28 February 2018) URL: http://www.bailii.org/eu/cases/EUECJ/2018/T76416.html Cite as: EU:T:2018:101, ECLI:EU:T:2018:101, [2018] EUECJ T-764/16

Court of Justice of the European Communities (including Court of First Instance Decisions)