Judgments nº T-484/18 of Tribunal General de la Unión Europea, March 12, 2020

• Resolution Date: March 12, 2020
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-484/18

(Civil service - ECB staff - Remuneration - Household allowance - Dependent child allowance - Education and pre-school allowances - Eligibility - Rejection of applications for those allowances - Conditions of Short-Term Employment - Conditions and rules applicable to short-term employment contracts)

In Case T-484/18,

XB, represented by L. Levi and A. Champetier, lawyers,

applicant,

v

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

defendant,

APPLICATION based on Article 270 TFEU and Article 50a of the Statute of the Court of Justice of the European Union seeking, first, annulment of the ECB’s decisions of 6 November and 4 December 2017 refusing to grant certain allowances and, as required, of the ECB’s decisions of 2 February 2018 rejecting the request for administrative review and of 5 June 2018 rejecting the request for a grievance procedure and, secondly, an order that the ECB pay the sum corresponding to those allowances,

THE GENERAL COURT (Second Chamber),

composed F. Schalin (Rapporteur), acting as President, B. Berke and M.J. Costeira, Judges,

Registrar: P. Cullen, Administrator,

having regard to the written part of the procedure and further to the hearing on 1 October 2019,

gives the following

Judgment

Background to the dispute

1 On 3 July 2017, the applicant, XB, entered into a short-term contract with the European Central Bank (ECB) under which he was to work for the ECB for a period of one year, from 15 July 2017 to 14 July 2018, as an auditor in the Directorate Internal Audit.

2 The contract between the applicant and the ECB was concluded under the ESCB-IO programme which gives experts from national central banks belonging to the European System of Central Banks (ESCB) or from international organisations the opportunity to gain professional experience within the ECB. It is governed by the Conditions of Short-Term Employment (‘CfSTE’) and the Rules for Short-Term Employment (‘RfSTE) in force at the ECB.

3 The applicant stated in his contract with the ECB that he had previously been employed by the Banco de España (Bank of Spain, Spain), which had granted him unpaid leave until 14 July 2018 in order to enable him to work at the ECB.

4 The applicant left Madrid (Spain) to move to Frankfurt am Main (Germany), the seat of the ECB, with his family, namely his wife, who had been granted unpaid leave by her employer in Spain and did not exercise any other professional activity, and the couple’s four minor children, born in 2002, 2004, 2008 and 2014 respectively.

5 On 16 October 2017, the applicant applied to the ECB for the household allowance, the dependent child allowance in respect of his four children and education allowance in respect of his three eldest children who were attending the European School.

6 On 4 December 2017, the applicant also applied for the preschool allowance in respect of his youngest child.

7 On 6 November 2017, the ECB informed the applicant that in view of his status as a short-term contract employee, he was not entitled to the allowances applied for in his application of 16 October 2017.

8 On 4 December 2017, the ECB informed the applicant that, on the same grounds, he was not entitled to receive the pre-school allowance.

9 On 15 December 2017, the applicant submitted an internal request for administrative review to challenge the decisions adopted by the ECB in his regard on 6 November and 4 December 2017 (together, the ‘contested decisions’), by which the ECB had refused to grant him the household allowance, the dependent child allowance in respect of his four children, the education allowance in respect of his three eldest children attending the European School and the pre-school allowance (together, the ‘family allowances’).

10 On 2 February 2018, the ECB rejected the applicant’s request for administrative review on the ground that, pursuant to the provisions governing his employment contract, it was not possible for him to be granted family allowances.

11 On 29 March 2018, the applicant sent the President of the ECB a request for a grievance procedure with a view to contesting the ECB’s position and obtaining payment of the amount corresponding to the family allowances that he had been refused, together with interest. That request for a grievance procedure was rejected by decision of the President of the ECB of 5 June 2018.

12 On 24 April 2018, the applicant and the ECB concluded an amendment to his contract, under which his contract was extended for a period of one year until 14 July 2019, followed by a second amendment, concluded on 18 October 2018, providing for a further extension for a period of one year until 14 July 2020.

Procedure and forms of order sought

13 By application lodged at the Court Registry on 14 August 2018, the applicant brought the present action.

14 Having received an application made by the applicant on the basis of Article 66 of the Rules of Procedure of the General Court, the latter, by decision of 17 September 2018, granted the application for anonymity and decided to omit the applicant’s name from the public version of the present judgment.

15 The defence, the reply and the rejoinder were lodged at the Court Registry on 1 November 2018, 9 January 2019 and 22 February 2019, respectively.

16 The parties were informed on 25 February 2019 that the written part of the procedure was closed, and the Court asked them to indicate whether they requested a hearing. On 8 March 2019, the applicant requested that a hearing be held. The ECB, for its part, did not take a position on that request.

17 On 19 March and 12 April 2019, the applicant submitted an offer of further evidence, relying on the provisions of Article 85(3) of the Rules of Procedure. On 3 April and 23 May 2019, the ECB lodged its observations on that offer of further evidence at the Court Registry.

18 The applicant claims that the Court should,

- annul the contested decisions;

- order the ECB to pay the sum corresponding to the family allowances applied for, together with default interest at the ECB rate + 2 points from the requested dates, taking into account the fact that corrective payments not relating to the month during which they were paid are subject to the tax to which they would have been subject had they been made at the proper time, in accordance with 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 (OJ 1968 L 56, p. 8);

- as required, annul the ECB’s decisions of 2 February 2018 rejecting the request for administrative review and of 5 June 2018 rejecting the request for a grievance procedure;

- order the ECB to pay the costs.

19 The ECB contends that the Court should:

- dismiss the action;

- order the applicant to pay the costs.

Law

20 In support of his action, the applicant claims that the legal framework applicable to short-term employment, namely the CfSTE and RfSTE, is unlawful and puts forward two pleas in law. The first plea has three parts, alleging, first, breach of the Charter of Fundamental Rights of the European Union (‘the Charter’) in so far as the provisions of the CfSTE and RfSTE infringe the rights of the child and the principles of family protection and non-discrimination, secondly, infringement of the principle of non-discrimination between temporary and permanent workers and, thirdly, infringement of the principle of non-discrimination and equality of taxpayers. The second plea alleges violation of the collective rights of ECB staff in so far as the Staff Committee was not properly consulted when the rules applicable to successive contracts were adopted, as resulting from Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP (OJ 1999 L 175, p. 43), and were included in the CfSTE and RfSTE.

21 The ECB contends that, first, the applicant’s head of claim seeking that the Court order the ECB to pay the applicant the amount corresponding to the family allowances and, secondly, the applicant’s claim relating to benefits on appointment are inadmissible. The ECB submits that the remainder of the applicant’s claims should be rejected as unfounded.

T he admissibility, first, of the head of claim seeking that the ECB be ordered to pay the amount corresponding to the family allowances and, secondly, of the claim relating to benefits on appointment

22 The ECB contends that the applicant’s head of claim seeking that the ECB be ordered to pay the amount corresponding to the family allowances is manifestly inadmissible since it is not for the Court to order an institution to adopt specific conduct given that, under Article 266 TFEU, the institution concerned is under the obligation only to adopt the measures necessary to comply with the judgment. The ECB also notes that the applicant has not presented the non-payment of the family allowances as damage that he has sustained whereas it would have been necessary in such a case to examine to what extent the applicant contributed to that damage by moving to Frankfurt am Main with his family and thus losing entitlement to Spanish family allowances.

23 Further, the ECB maintains that, in paragraphs 74 to 78 and 121 of the application, the applicant alleges a difference in treatment in relation to benefits on appointment. However, the applicant initiated an internal pre-litigation procedure and the exhaustion of such a procedure is one of the conditions for admissibility of proceedings before the Court. Accordingly, the challenging of such a decision does not fall within the scope of the present proceedings before the Court.

24 The applicant maintains that, in the event that the Court were to annul the contested decisions, it would be for the ECB to comply with the rules pertaining to the family allowances to...