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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Bowles and Others v ECB (Civil service - ECB staff - Remuneration - Judgment) [2025] EUECJ T-1076/23 (26 February 2025) URL: http://www.bailii.org/eu/cases/EUECJ/2025/T107623.html Cite as: ECLI:EU:T:2025:185, EU:T:2025:185, [2025] EUECJ T-1076/23 |
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JUDGMENT OF THE GENERAL COURT (Tenth Chamber)
26 February 2025 (*)
( Civil service - ECB staff - Remuneration - Annual salary adjustment - Methodology for calculating the adjustment - Taking into account of the exchange rate between the euro and the Swiss franc - Error of assessment )
In Case T‑1076/23,
Carlos Bowles, residing in Frankfurt am Main (Germany), and the other applicants whose names are listed in the annex, (1) represented by L. Levi, lawyer,
applicants,
v
European Central Bank (ECB), represented by B. Ehlers, F. Malfrère and D. Camilleri Podestà, acting as Agents, assisted by B. Wägenbaur, lawyer,
defendant,
THE GENERAL COURT (Tenth Chamber),
composed of O. Porchia, President, L. Madise (Rapporteur) and S. Verschuur, Judges,
Registrar: A. Marghelis, Administrator,
having regard to the written part of the procedure,
further to the hearing on 11 September 2024,
gives the following
Judgment
1 By their action under Article 270 TFEU and Article 50a of the Statute of the Court of Justice of the European Union, the applicants, Mr Carlos Bowles and the other natural persons whose names are listed in the annex, seek the annulment, first, of their salary statements or pension slips of January 2023, in so far as they implement the decision of the European Central Bank (ECB) of 22 December 2022 fixing the annual General Salary Adjustment for 2023 at 4.0751% (‘the contested decisions’), and, second, of the decisions of 30 August 2023 partially rejecting their complaints.
I. Background to the dispute
2 The applicants are members of staff and retirees of the ECB.
3 Article 13 of the ECB’s Conditions of Employment provides that the Governing Council, on a proposal from the Executive Board, will adopt a general staff salary adjustment (‘the GSA’), which will take effect on 1 January of each year. The GSA is calculated in accordance with the ECB’s General Salary Adjustment Methodology (‘the GSA methodology’), initially adopted on 11 June 2008 and approved on 19 June 2008 by the Governing Council of the ECB for a period of three years, with an automatic extension for successive three-year periods. The GSA methodology is supplemented by an interpretation note of 18 August 2016, which was also approved by the Governing Council of the ECB (‘the interpretation note of 2016’). That methodology provides for the collection and weighting of data on staff salaries provided by 22 ‘comparator organisations’, such as national central banks, EU institutions, bodies and agencies, the European Investment Bank (EIB) and the Bank for International Settlements (BIS) (taken together, ‘the comparator organisations’), the BIS being the only comparator organisation to express its data in a currency other than the euro, namely the Swiss franc.
4 By a note of 24 May 2022, the Director-General of the ECB’s Directorate-General for ‘Human Resources’ (‘the Director-General’) contacted the comparator organisations for the purpose of collecting the data provided for in the GSA methodology for the provisional calculation of the GSA applicable from 1 January 2023 (‘the 2023 GSA’).
5 By a note of 26 September 2022, the Director-General launched an initial consultation with the staff committee of the ECB and the International and European Public Services Organisation (IPSO), a trade union, stating that a 2023 GSA of 3.3241% was planned. The ECB staff committee and IPSO stated their refusal of the planned GSA in their opinions of 26 and 28 October 2022.
6 By a note of 30 November 2022, the Director-General launched a second consultation setting out a final 2023 GSA of 4.0720%. By notes of 15 December 2022, the ECB staff committee and IPSO submitted observations stating that the ECB had not respected the methodology when calculating the 2023 GSA proposed and disputed the validity of the data from certain comparator organisations, namely the BIS, the Deutsche Bundesbank (German Central Bank) and the Kentriki Trapeza tis Kyprou (Central Bank of Cyprus).
7 By decision of 22 December 2022, the Director-General closed the consultations and fixed the 2023 GSA at 4.0751%. That decision was applied to the salary statements and pension slips from January 2023.
8 The applicants submitted requests for administrative review of those salary statements or pension slips for January 2023 and the following months, which the Director-General rejected by decisions of 8 May 2023.
9 At the beginning of July 2023, the applicants submitted complaints against the rejection of their requests for administrative review.
10 By decisions of 30 August 2023, the President of the ECB partially upheld the complaints, by accepting that the ‘Cost of Living Allowance’ received by the staff of the Central Bank of Cyprus in 2022 should have been included in the data provided by that comparator organisation used to calculate the 2023 GSA. She stated that the 2023 GSA would be adjusted in order to give effect to the inclusion of that allowance. The complaints were rejected as to the remainder.
II. Forms of order sought
11 The applicants claim, in their form of order sought as most recently formulated, that the Court should:
– annul the contested decisions;
– annul, if need be, the decisions rejecting their requests for administrative review;
– annul, if need be, the decisions partially rejecting their complaints;
– order the ECB to pay the costs.
12 The ECB contends that the Court should:
– dismiss the action;
– order the applicants to pay the costs.
III. Law
A. Subject matter of the action
13 First, the applicants stated, at the hearing, that they have withdrawn the claims initially formulated in their application seeking the annulment of the salary statements or pension slips issued after January 2023, formal note of which was taken in the minutes of the hearing.
14 Second, the applicants seek not only the annulment of the contested decisions, but also, if need be, the annulment of the decisions rejecting the requests for administrative review and of the decisions on their complaints.
15 It should be recalled that a claim for annulment formally directed against the decision rejecting a grievance has the effect of bringing before the Court the act against which the grievance was submitted, where that claim, as such, lacks any independent content (see judgment of 30 June 2021, GY v ECB, T‑746/19, not published, EU:T:2021:390, paragraph 18 and the case-law cited). That principle also applies to decisions rejecting the requests for administrative review submitted by members of staff and retirees of the ECB (see, to that effect, judgment of 30 June 2021, GY v ECB, T‑746/19, not published, EU:T:2021:390, paragraph 19 and the case-law cited).
16 In the present case, it must be observed that the decisions rejecting the requests for administrative review submitted by the applicants confirm, as regards the 2023 GSA, the contested decisions and therefore have no independent content.
17 However, it should be noted that, in the decisions on the complaints, the ECB stated, in connection with the data provided by the Central Bank of Cyprus used to calculate the 2023 GSA, that the 0% percentage initially applied as the adjustment rate of salaries in the Central Bank of Cyprus for the year 2022 was the result of an error. The ECB stated that, after liaising further with that comparator organisation, it had established that the employees of that organisation had received a ‘Cost of Living Allowance’ in 2022 amounting to an increase in gross annual basic salary of 1.65%. The ECB concluded that that change should have been taken into account and that the 2023 GSA would therefore be corrected. Since, following the applicants’ complaints, the ECB corrected the data relating to the Central Bank of Cyprus used to calculate the 2023 GSA, the decisions on the complaints must be regarded as having, to that extent, a different scope from that of the contested decisions.
18 It follows from the foregoing that it is necessary to examine not only the claims for annulment of the contested decisions, but also the claims directed against the decisions on the complaints, in so far as they take account, for the calculation of the 2023 GSA, of the corrected data for 2022 provided by the Central Bank of Cyprus.
B. Admissibility
19 The ECB submits that the claims directed against the decisions on the requests for administrative review and against the decisions on the complaints must be rejected as inadmissible, since the applicants have neither reproduced in their application the second and third pleas in law raised in their requests for administrative review, and then in their complaints, nor have they maintained their claim for retroactive revision of the GSA from 2009 in respect of the data drawn from the BIS and the Central Bank of Cyprus.
20 The ECB’s line of argument cannot be upheld in that regard.
21 First, since the decisions rejecting the requests for administrative review have no independent content and there is therefore no need to examine specifically the claims for annulment directed against those decisions, there is also no need to rule on the plea of inadmissibility of those claims.
22 Second, the fact that the applicants have, at the stage of their action, reduced their claims and withdrawn certain pleas contained in their complaints cannot entail the inadmissibility of their claims for annulment of the decisions partially rejecting those complaints.
23 The plea of inadmissibility raised in that regard by the ECB must therefore be rejected.
C. Substance
24 In support of their action, the applicants raise a single plea in law, alleging infringement of the GSA methodology and, therefore, of their legitimate expectations. That plea in law is divided into three parts, concerning the taking into account of the data provided, respectively, by the BIS, the German Central Bank and the Central Bank of Cyprus. Those three parts will be examined in turn.
1. The first part of the single plea in law
25 The applicants claim that the ECB infringed the GSA methodology by adding variables expressed in different units, after refusing to convert into euros the comparator data of the BIS expressed in Swiss francs.
26 Specifically, the applicants submit that the calculation of a mathematically correct average requires the underlying data to be comparable. Therefore, in order to ensure the comparability of the data provided, the ECB must convert the BIS data expressed in Swiss francs into euros by means of an exchange rate. Merely using the figures provided, expressed in percentages, would result in calculation errors since, according to the applicants, a 10% increase in euros would not amount to the same increase in Swiss francs. Therefore, the calculation of the average is mathematically incorrect, because the percentages provided by the BIS are based on a variable expressed in a different unit.
27 The applicants also submit that the addition of variables expressed in different units results in ‘economic … flaws’, since the salaries expressed in currencies whose purchasing power has depreciated would contribute positively to the salary adjustment of ECB staff, whereas the opposite effect would occur in the case of salaries expressed in currencies whose purchasing power has remained stable or has improved vis-à-vis the euro.
28 The applicants add, moreover, that the fact that the exchange rate between the euro and the Swiss franc has never been taken into account in the calculation of the GSA since the GSA methodology was adopted in 2008 is irrelevant, since the action is limited to the 2023 GSA. Also, the fact of having made a mistake in the past should not be a reason to continue making it in the future.
29 Lastly, the mere fact that the ECB has not asked the comparator organisations to provide exchange rate data does not prevent the ECB itself from using exchange rates to convert Swiss francs into euros. That applies a fortiori since the BIS mentioned changes in the exchange rate between the euro and the Swiss francs in an exchange of emails with the ECB relating to the 2023 GSA.
30 The ECB disputes the applicants’ line of argument.
31 From the outset, it should be recalled that the ECB devised the GSA methodology in accordance with Article 13 of the Conditions of Employment for Staff of the ECB, which does not impose any criterion for making the salary adjustments. It was therefore held that that provision conferred, in that context, a wide discretion on the Governing Council in defining the criteria used to determine the GSA (judgment of 20 November 2003, Cerafogli and Poloni v ECB, T‑63/02, EU:T:2003:308, paragraph 48). Moreover, it is apparent from the case-law that the GSA methodology constitutes a binding rule with which the ECB is required to comply when making an annual adjustment to salaries (see, to that effect, judgments of 7 June 2011, Larue and Seigneur v ECB, F‑84/09, EU:F:2011:71, paragraph 55, and of 29 September 2011, Bowles and Others v ECB, F‑114/10, EU:F:2011:173, paragraph 71). Therefore, the GSA methodology cannot be regarded as a mere internal directive from which the EIB could depart, provided that it gave its reasons for doing so (see, to that effect, judgment of 14 September 2017, Bodson and Others v EIB, T‑504/16 and T‑505/16, EU:T:2017:603, paragraph 54).
32 It should also be recalled that the GSA methodology provides that the GSA is based on the ‘weighted average development in gross annual basic salaries at the comparator organisations’. Unlike the other comparator organisations, the BIS pays its employees in a currency other than the euro, namely the Swiss franc.
33 In the present case, the applicants do not rely on the illegality of the GSA methodology, but claim that the ECB applied it incorrectly.
34 In those circumstances, it must be determined whether, as the applicants claim, in calculating the 2023 GSA, the ECB was obliged to convert the BIS data expressed in Swiss francs into euros by means of an exchange rate.
35 In that regard, it should be noted that, as the ECB rightly states, the GSA methodology does not expressly lay down the requirement to take into account an exchange rate in the case of data from comparator organisations which are based on a currency other than the euro. It should be emphasised, though, that, when the GSA methodology entered into force, the fact that the data provided by the BIS were based on a currency other than the euro was common knowledge. However, the authors of the GSA methodology did not provide, in the case of the BIS, for any specific provision intended to take that particularity into account. Moreover, such an exchange rate was not subsequently incorporated into the GSA methodology. Thus, the interpretation note of 2016 adopted in order to supplement the GSA methodology does not lay down such a requirement. Although the applicants refer, in their written submissions, to the interpretation note of 2016, it should be noted that it does not consider the question of currency conversion, as they also recognise. Therefore, that note cannot, in any event, usefully support their argument.
36 It follows from the foregoing that the need to convert the data of comparator organisations whose salaries are expressed in another currency into euros is not apparent from the wording of the GSA methodology or even from that of the interpretation note of 2016.
37 The applicants also maintain, in essence, that such a conversion obligation is implicit in the GSA methodology.
38 In that regard, it should be recalled that the provisions of EU law relating to the grant of a financial benefit must be interpreted strictly (see judgment of 18 July 2017, Commission v RN, T‑695/16 P, not published, EU:T:2017:520, paragraph 54 and the case-law cited). In accordance with the strict interpretation to be given to the GSA methodology, an obligation to convert data expressed in a currency other than the euro could implicitly arise from the GSA methodology only if such a conversion were necessary to ensure a correct application and to prevent inconsistencies in calculating the weighted average development in gross annual basic salaries at the comparator organisations.
39 In the first place, the applicants have not succeeded in demonstrating that the salary adjustments at the BIS must be converted into euros in order to ensure the mathematical correctness of the calculation of the weighted average provided for in the GSA methodology.
40 The applicants submit in that regard that not converting data expressed in different units by means of an exchange rate leads to mathematically incorrect results. They refer for that purpose to an example relating to changes in temperature expressed in degrees Celsius and in degrees Fahrenheit. According to the applicants, a change of 10% expressed in degrees Celsius is not the same as a change of 10% expressed in degrees Fahrenheit. In their view, that example demonstrates that, in order to calculate the average change of variables expressed in different units, those variables must first be converted into the same units.
41 However, it should be noted that the comparison made by the applicants is unfounded. The example relating to temperature changes measured in degrees Celsius and degrees Fahrenheit expressed in percentages, which does not take into account the fact that the Celsius and Fahrenheit temperature scales do not have the same point of reference and contain negative values, must be dismissed as irrelevant. Moreover, unlike the conversion between degrees Celsius and degrees Fahrenheit, the conversion of currencies is a procedure requiring mere multiplication of a unit by an exchange rate. It follows that, contrary to what the applicants claim, a 10% increase in Swiss francs amounts to the same increase converted into euros. Furthermore, as regards the BIS data, it must be stated that the difference of currency units is neutralised by the fact that the data of the comparator organisations are, as the ECB states, notified in percentages rather than in figures, as laid down in the interpretation note of 2016 in that regard.
42 In the light of the foregoing, it must be concluded that conversion of the BIS data is not necessary in order to ensure the mathematical accuracy of the calculation of the weighted average development in salary provided for in the GSA methodology.
43 In the second place, the applicants have no basis for submitting that an exchange rate must be applied in order to prevent ‘economic conceptual flaws’.
44 In that regard, the applicants claim that not converting from currencies other than the euro leads to mistakes from the perspective of economic reasoning, since the taking into account of salaries expressed in currencies whose purchasing power remained stable or improved vis-à-vis the euro, such as the Swiss franc, would negatively contribute to the salary adjustment of ECB staff.
45 It must be borne in mind, however, that it is clear from the first bullet point of the GSA methodology that the GSA is determined in accordance with the development in gross annual basic salaries at the comparator organisations. Therefore, the GSA methodology does not include changes in purchasing power linked to exchange rate fluctuations among the parameters used to adjust salaries at the ECB.
46 It should also be emphasised that the GSA methodology does not provide for a system of exceptions requiring the establishment of an exchange rate, in particular in order to take account of a particular economic context. In that regard, it can be stated that the EU judicature held that, even in the event of a serious economic crisis, the ECB could not, in determining the GSA, depart from the clear and unequivocal terms of the GSA methodology (see, to that effect, judgment of 29 September 2011, Bowles and Others v ECB, F‑114/10, EU:F:2011:173, paragraphs 69 and 70).
47 Moreover, it should be noted that, as stated in paragraph 31 above, the Governing Council of the ECB has a wide discretion in defining the criteria to be used to determine the GSA. In exercising that discretion, it was open to the Governing Council to choose not to adopt the development of the exchange rate between the Swiss franc and the euro as one of the parameters to be taken into account in order to determine the GSA.
48 Furthermore, the calculation methodology proposed by the applicants, the results of which are set out in a table reproduced in point 12 of their replies to the measure of organisation of procedure, is based on an approach which conflicts directly with the GSA methodology. For example, according to the table submitted by the applicants, taking into account the changes in the exchange rate between the Swiss franc and the euro, an increase in salaries at the BIS of 19.32% should be adopted for the year 2011, even though, for that same year, the data provided by the BIS reveal that its salaries increased by 0%. That example shows that whereas, as stated in paragraph 45 above, the GSA must be determined in accordance with the developments in salaries observed during a given year at the comparator organisations, the approach put forward by the applicants would result in the inclusion in the calculation of the GSA of a salary increase of nearly 20% for a year in which salaries at the BIS were not increased at all.
49 In the light of all the foregoing, it must be concluded that the obligation to take into account an exchange rate is neither explicitly laid down in the GSA methodology or the interpretation note of 2016, nor implicit and necessary in order to ensure the correct calculation of the GSA. Therefore, contrary to what the applicants claim, the failure to take into account the exchange rate between the Swiss franc and the euro is not the result of an error perpetuated by the ECB since the entry into force of the methodology, but of the correct application of the methodology.
50 That conclusion cannot be called into question by the applicants’ argument that the BIS itself, in an exchange of emails with the ECB, gave details of trends related to fluctuations in the exchange rate between the euro and the Swiss franc and the inflation observed in Switzerland since November 2021. According to the applicants, the ECB should have taken that information into account in the calculation of the 2023 GSA. The applicants add that, even in the absence of any information provided by the BIS in that regard, the ECB itself could have carried out a conversion between the Swiss franc and the euro.
51 However, it must be borne in mind, first, that the GSA methodology and the interpretation note of 2016 do not lay down any explicit or implicit obligation to take into account an exchange rate between the euro and the Swiss franc or the inflation observed in Switzerland. Second, the interpretation note of 2016 provides that the data provided by the comparator organisations are limited to the approved annual adjustment, expressed as a percentage of the comparator organisation’s basic salary bill, on the specific date of implementation of that adjustment and to the number of employees affected.
52 Therefore, the mere fact that a comparator organisation such as the BIS refers, on its own initiative, to information relating to the development of the exchange rate between the Swiss franc and the euro and to the inflation observed in Switzerland could not oblige the ECB to take it into account, since such information is not relevant to the calculation of the GSA and is not included in the information which the comparator organisations must provide to the ECB. For the same reasons, contrary to what the applicants maintain, it was not for the ECB to itself convert the data provided by the BIS into euros or to ask that comparator organisation for additional information on exchange rates.
53 It follows from the foregoing that the applicants are not justified in claiming that the ECB infringed the GSA methodology by not converting the data provided by the BIS into euros.
54 Therefore, the first part of the single plea in law must be rejected as unfounded.
2. The second part of the single plea in law
55 The applicants claim that the data from the German Central Bank used to calculate the 2023 GSA should have included three benefits granted by that organisation to its employees, namely an energy price lump sum, an upgrade of positions and a travel season ticket. According to the applicants, those benefits must be regarded as forming part of the gross annual basic salary paid to those employees, according to the definition of that concept provided for in the interpretation note of 2016. Consequently, the applicants maintain that the ECB could not reproduce in its original form the information so provided by the German Central Bank for the purpose of calculating the 2023 GSA.
56 The applicants argue that the concept of ‘gross annual basic salary’ must be interpreted broadly. According to the applicants, since the interpretation note of 2016 states that the concept of ‘gross annual basic salary’ is interpreted in accordance with the ‘European standard’, that concept must be interpreted by reference to the term ‘pay’ defined in Article 157 TFEU, which comprises any consideration, whether immediate or future, direct or indirect, irrespective of whether the worker receives it under a contract of employment, by virtue of legislative provisions or on a voluntary basis. That interpretation is confirmed by Commission Regulation (EC) No 1737/2005 of 21 October 2005 amending Regulation (EC) No 1726/1999 as regards the definition and transmission of information on labour costs (OJ 2005 L 279, p. 11), to which the interpretation note of 2016 expressly refers.
57 The ECB disputes the applicants’ arguments.
58 It is necessary, first of all, to examine the applicants’ line of argument relating to the concept of ‘gross annual basic salary’ before addressing, secondly, the arguments relating more specifically to each of the benefits which the ECB had, according to the applicants, to take into account in relation to the data provided by the German Central Bank.
(a) The concept of ‘gross annual basic salary’
59 In order to ascertain whether the three benefits granted by the German Central Bank to its employees must be regarded as forming part of the gross annual basic salary and, therefore, be included by the ECB in the calculation of the 2023 GSA, it is necessary to determine whether the concept of ‘gross annual basic salary’ must, as claimed by the applicants, be interpreted by reference to the concept of ‘pay’ defined in Article 157 TFEU.
60 According to the first bullet point of the GSA methodology, the GSA is based on the development in gross annual basic salaries of staff at the comparator organisations, those salaries consisting, first, of the gross annual basic salary and, second, of ‘one-off measures at the comparator organisations that do not affect medium term salary costs and which are awarded to [a group or groups] of staff and are not performance based (for example, lump-sum payments)’.
61 The concept of ‘gross annual basic salary’ is then clarified by the interpretation note of 2016, which states that that concept is defined, in accordance with the ‘relevant European standard’, as the ‘total remuneration in cash, (excluding individually differentiated performance elements), payable by an enterprise to an employee in return for work done by the latter during the reporting period paid to all staff or groups of staff with the same employment status’. The interpretation note of 2016 contains a list of the elements included in that definition.
62 It should be stated at the outset that the applicants are not claiming that there is a conflict between the interpretation note of 2016 and the GSA methodology, but submit that the ECB has not correctly applied the definition criteria contained in that note.
63 In the present case, it must be emphasised that the interpretation note of 2016, which supplements the GSA methodology, explicitly lays down a definition of gross basic salary which is not expressed in the same terms as the concept of ‘pay’ defined in Article 157 TFEU. Contrary to the latter concept, which includes, inter alia, indirect consideration received by the worker, the concept of ‘gross annual basic salary’, as defined in the interpretation note of 2016, is limited, in particular, to the total remuneration in cash payable in return for work done by the employee. Therefore, the concept of ‘gross basic salary’ is different and more restricted than the concept of ‘pay’ as defined in Article 157 TFEU.
64 Similarly, it should be noted that the interpretation note of 2016 does not contain any reference to Article 157 TFEU. Although that note states that the concept of ‘gross annual basic salary’ is defined in accordance with the ‘relevant European standard’, that statement cannot, contrary to what the applicants maintain, suffice for the view to be taken that the ECB intended to define the concept of ‘gross annual basic salary’ differently from the wording that it gave to it in its own definition in the interpretation note of 2016.
65 Moreover, the interpretation note of 2016 states that Regulation No 1737/2005 and the judgment of 7 June 2011, Larue and Seigneur v ECB (F‑84/09, EU:F:2011:71), are included in the elements taken into account by the ECB in order to clarify the concept of ‘gross annual basic salary’. However, neither Regulation No 1737/2005 nor that judgment refer to the concept of ‘pay’ as defined in Article 157 TFEU. Therefore, those references do not justify departing from the definition of the concept of ‘gross basic salary’ set out in the interpretation note of 2016.
66 It follows that the applicants’ arguments put forward on the basis of a broad interpretation of the concept of ‘gross annual basic salary’ do not support the view that that concept should be interpreted by reference to the concept of ‘pay’ within the meaning of Article 157 TFEU.
(b) Inclusion of the benefits granted by the German Central Bank
67 It must be determined, in the light of the GSA methodology and the definition of gross annual basic salary laid down in the interpretation note of 2016, whether the three benefits granted by the German Central Bank to its employees are to be included in the concept of ‘gross annual basic salary’ and whether, therefore, the ECB should have taken them into account when calculating the 2023 GSA.
68 As a preliminary point, it should be noted that, although it is not for the ECB, as a general rule, to dispute the accuracy of the figures forwarded by the comparator organisations, it does fall within the ECB’s competence to give the figures an appropriate legal characterisation in the light of the criteria laid down in the interpretation note of 2016 (see, to that effect, judgment of 7 June 2011, Larue and Seigneur v ECB, F‑84/09, EU:F:2011:71, paragraph 50).
(1) The energy price lump sum
69 As regards the first benefit, it is clear from the documents in the file that the German Central Bank paid an energy price lump sum to all its employees on the basis of a German Federal Government decision. That lump sum, which was paid to all employees, was intended to offset energy price increases.
70 According to the applicants, that lump sum should have been included under the concept of gross annual basic salary, since it was actually paid by the German Central Bank as employer and obtaining an income from employment is laid down as a prerequisite for payment of that lump sum.
71 In the light of the definition of gross annual basic salary laid down in the interpretation note of 2016, it is necessary to determine whether that lump sum decided on by the German Federal Government, but actually paid by the employer, constitutes salary from the employer, in that it is paid ‘in return for work done’ within the meaning of that note.
72 In the present case, it is apparent from the file and, in particular, from the parties’ replies to the measure of organisation of procedure that the energy price lump sum was paid on the initiative of the German Federal Government and was entirely financed by it. As the ECB submitted, the payment of the lump sum through the employer was merely intended to simplify the administrative steps involved in distributing that lump sum, enabling the recipients and their bank details to be identified, whereupon the employer could deduct from tax the sum paid as a lump sum and, thereby, recover it. Employers had thus the mere function of a paying agent. Therefore, that lump sum, although paid through the employer, cannot be regarded as having been granted by that employer in return for work done by the employee. Consequently, that lump sum is not based on a specific, individual employment relationship with the employee and thus cannot be regarded as a component of his or her salary.
73 Moreover, the fact mentioned by the parties in their replies to the measure of organisation of procedure that a similar lump sum, intended to offset the increase in the price of energy, was paid to groups of society other than employees, in particular self-employed persons, students, pensioners and unemployed persons, confirms that, in the case of employees, the energy price lump sum, although paid by the employer, was not granted to them in return for the work that they had done.
74 Therefore, the energy price lump sum was rightly not regarded as forming part of the gross annual basic salary paid by the German Central Bank to its employees, and, consequently, that benefit was not to be taken into account in the calculation of the 2023 GSA.
(2) The upgrade of positions
75 As regards the second benefit, it is clear from the file that the process of upgrading positions is the result of an assessment whether a given position is assigned at the appropriate level in the light of national legislation. According to the ECB, following that assessment, a position may therefore be upgraded or downgraded.
76 According to the applicants, that upgrade should have been taken into account in the development of the gross annual basic salary, since it is, in fact, a general increase of the salary table for which certain categories of staff are eligible and which is unrelated to their individual performance.
77 From the outset, it should be recalled that the GSA methodology provides that the definition of the GSA must take into account the development in gross annual basic salaries at the comparator organisations. Similarly, the interpretation note of 2016 states that account must be taken of salary adjustments applied to all staff or certain groups of staff with the same status. It is also stated that payments made in the light of employees’ individual performance are not taken into account.
78 In view of the benefit in question, it should also be noted that the gross annual basic salary is defined as the ‘total remuneration in cash (excluding individually differentiated performance elements), payable by an enterprise to an employee in return for work done by the latter during the reporting period paid to all staff or groups of staff with the same employment status, comprising basic wages and salaries (… salary tables/grid/structure)’.
79 In the light of that definition, the upgrading of positions by the German Central Bank was to be taken into account in determining the GSA only if it was reflected in a specific development in salaries relating to all staff or certain groups of staff, irrespective of the individual situation of staff members.
80 However, it is not apparent from the file that that upgrade of positions was reflected in a general increase in the salaries of the staff members concerned. On the contrary, the ECB contends, without being contradicted by the applicants, that the upgrading of a position does not automatically result in an increase in salary for the post holder. According to the ECB, the post holder will be able to claim such an increase if he or she fulfils certain criteria related, for example, to that person’s level of education. Moreover, it is clear from the example given by the applicants in point 84 of the application that, in order to benefit from the upgrading of their positions, the staff members concerned must not have been promoted during the last twelve months or, if they have been promoted during that period, must wait until twelve months have passed. That example also serves to demonstrate that persons occupying a position affected by an upgrade can claim an increase in salary only if they individually fulfil certain conditions.
81 Therefore, there is no reason to consider that an upgrading of positions at the German Central Bank resulted in an increase in salaries under the conditions stated in paragraph 79 above.
82 Accordingly, it must be concluded that the ECB was justified in not including the upgrade of positions among the factors taken into account in order to determine the GSA.
(3) The travel season ticket
83 As regards the third benefit, it is clear from the documents in the file that the German Central Bank offered to all of its employees the possibility of acquiring a public transport ticket subsidised and paid for by the State.
84 The applicants claim that that benefit granted to employees of the German Central Bank forms part of their remuneration subject to tax and must, on that basis, be included among the factors taken into account in order to determine the GSA.
85 In the light of the definition of gross annual basic salary contained in the interpretation note of 2016, the inclusion of that benefit among the components of that salary presupposes in particular that it can be regarded as a ‘remuneration [paid] in cash’.
86 However, as the ECB stated at the hearing, without being contradicted by the applicants, the transport tickets were bought by the German Central Bank before being distributed to the employees who requested them. Therefore, that benefit was not paid to them in cash, but offered in kind.
87 Consequently, the ECB was justified in taking the view that the transport ticket was not be included among the components of the gross annual basic salary of the German Central Bank’s employees according to the definition contained in the interpretation note of 2016. That conclusion cannot be called into question by the fact that, as the applicants maintain, the transport ticket forms part of the taxable income of the persons who received it, since the definition of gross annual basic salary contained in the interpretation note of 2016 does not provide for such a criterion.
88 It follows from the foregoing that none of the three benefits that the German Central Bank granted to its employees had to be included as part of the gross annual basic salary as defined in the interpretation note of 2016, and therefore they were not to be taken into account by the ECB in the calculation of the 2023 GSA.
89 Therefore, the second part of the single plea in law must be rejected as unfounded.
3. The third part of the single plea in law
90 The applicants dispute the figure used by the ECB to calculate the 2023 GSA in respect of the data provided by the Central Bank of Cyprus. The applicants claim that no salary adjustment method existed at that comparator organisation for 2021 and 2022 and that that comparator organisation adopted a system for increasing salaries based on performance. The applicants maintain that, in such a situation, the ECB ought not to have adopted, as it did, a 0% increase in salaries. According to the applicants, in the absence of a salary adjustment method, the ECB should have used the proxy formula referred to in the eighth bullet point of the GSA methodology, based on the inclusion of performance-related salary increases.
91 The ECB contends that the present part of the single plea in law should be rejected. It submits in particular that the applicants do not take account of the fact that, following their complaints, it corrected the 0% figure initially used for 2022 by taking into account the development in salaries linked to the Cypriot ‘Cost of Living Allowance’.
92 When questioned about this at the hearing, the applicants stated that they considered that the ECB had not upheld their complaints on the point relating to the Central Bank of Cyprus. In their view, the inclusion of the Cypriot ‘Cost of Living Allowance’ in the calculation of the GSA does not take into account their arguments that the Central Bank of Cyprus did not have its own salary adjustment method for annually adjusting its employees’ salaries. The applicants therefore maintained their argument that the proxy formula provided for in the eighth bullet point of the GSA methodology should have been used in the case of that comparator organisation.
93 As a preliminary point, it should be noted that the GSA methodology provides that, in order to determine the GSA, the gross annual basic salaries of the current year should be used (where available) or those anticipated for 1 January in the following year.
94 In situations where a salary adjustment method does not exist at a comparator organisation, the eighth bullet point of the GSA methodology provides for the use of a proxy formula defined as being ‘(x minus the ECB budget for performance related pay increases) where x is equal to the percentage of the salary bill allocated to performance related pay increases at the comparator organisation and the current budget for performance related pay at the ECB is 1.5%’.
95 In order to ascertain whether the eighth bullet point of the GSA methodology ought, in the present case, to have been applied by the ECB, as the applicants claim, it must be determined whether the Cypriot ‘Cost of Living Allowance’ can be regarded as a salary adjustment method within the meaning of the GSA methodology.
96 In that regard, in the decisions on the complaints, the ECB stated that the Cypriot ‘Cost of Living Allowance’ received by the employees of the Central Bank of Cyprus in 2022 was reflected in the case of those employees in a development in their gross annual basic salary. The ECB accordingly took the view that that ‘Cost of Living Allowance’ should have been taken into account in determining the 2023 GSA.
97 Although, at the hearing, the applicants claimed, in essence, that an allowance amounted to an aid measure which could not be treated as equivalent to a salary adjustment method, it is necessary to look to the substance of that measure and not merely to its name. It should be pointed out that the applicants have not adduced evidence capable of calling into question the information contained in the decisions on their complaints or the clarifications provided by the ECB at the hearing, from which it follows that the Cypriot ‘Cost of Living Allowance’ corresponds to a salary indexation mechanism which results in a development of the gross annual basic salary of the employees concerned.
98 Moreover, it is not clear from the GSA methodology that the ECB can only take into account adjustments to gross annual basic salary determined according to a method specific to the comparator organisation concerned. Such a requirement is not apparent either from the GSA methodology itself or from the interpretation note of 2016. There is therefore nothing in the GSA methodology to preclude the possibility for the comparator organisations of using a salary adjustment method applied at national level. Therefore, the fact that the Cypriot ‘Cost of Living Allowance’ is used not only by the Central Bank of Cyprus but also by other public institutions and other undertakings in Cyprus does not prevent it from being regarded as a salary adjustment method within the meaning of the GSA methodology.
99 It follows from the foregoing that the applicants are not justified in claiming that there was no salary adjustment method in existence at the Central Bank of Cyprus and that the proxy formula provided for in the absence of such a method in the eighth bullet point of the GSA methodology had, therefore, to be applied.
100 Furthermore, it is clear from points 7.2 and 7.3 of the decisions on the complaints and from the clarifications made by the ECB at the hearing that the Central Bank of Cyprus already had a salary adjustment method in 2021. The ECB stated at the hearing that that method had resulted in a salary indexation of 0% for that year. The applicants, for their part, did not submit any specific evidence to show that that figure which the Central Bank of Cyprus notified to the ECB was the result of an error. Therefore, the applicants are not justified in claiming that the ECB erred in adopting a 0% salary adjustment in respect of that comparator organisation for the year 2021.
101 Lastly, although the applicants maintain that the ECB erred in adopting a 0% adjustment for 2022, their arguments in that regard do not take account of the fact that the ECB recognised, when examining their complaints, that that figure was wrong and that the new information obtained from the Central Bank of Cyprus should be taken into account. It should also be noted that the applicants did not dispute the accuracy of the 1.65% figure referred to in paragraph 17 above which was adopted by the ECB in the decisions on those complaints.
102 In the light of the foregoing, the third part of the single plea in law must be rejected as unfounded.
103 As stated in paragraph 24 above, the applicants allege infringement of the principle of protection of legitimate expectations. The applicants stated at the hearing that they considered that their legitimate expectations had been infringed as a result of the incorrect application of the GSA methodology. However, it follows from all the foregoing that the applicants are not justified in claiming that the ECB determined the 2023 GSA by erroneously applying the GSA methodology. Therefore, they are likewise not justified in alleging an infringement of the principle of legitimate expectations.
104 Consequently, the action must be dismissed in its entirety.
IV. Costs
105 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the ECB.
On those grounds,
THE GENERAL COURT (Tenth Chamber)
hereby:
1. Dismisses the action;
2. Orders Mr Carlos Bowles and the other applicants whose names are listed in the annex to pay the costs.
Porchia | Madise | Verschuur |
Delivered in open court in Luxembourg on 26 February 2025.
V. Di Bucci | S. Papavavvas |
Registrar | President |
* Language of case: English.
1 The list of the other applicants is annexed only to the version sent to the parties and addressees referred to in Article 55 of the Statute of the Court of Justice of the European Union.
© European Union
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