CJEU T-713/14 / Judgment

Organisation des salariés auprès des institutions européennes et internationales en République fédérale d'Allemagne (IPSO) v. European Central Bank
Policy area
Employment and social policy
Deciding body type
Court of Justice of the European Union
Deciding body
General Court (First Chamber)
Type
Decision
Decision date
13/12/2016
ECLI (European case law identifier)
ECLI:EU:T:2016:727

EU-stadgan om de grundläggande rättigheterna

Title IV: Solidarity

Article 27 - Workers' right to information and consultation within the undertaking

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  • CJEU T-713/14 / Judgment

    Key facts of the case:

    ECB — Staff of the ECB — Temporary agency staff — Limit on the maximum length of service of the same agency worker — Action for annulment — Challengeable act — Direct and individual effect — Interest in bringing proceedings — Period allowed for commencing proceedings — Admissibility — Failure to inform and consult the applicant trade union — Non-contractual liability

    Results (sanctions) and key consequences of the case:

    THE GENERAL COURT (First Chamber) hereby:

    1. Annuls the decision of the Executive Board of the European Central Bank (ECB) of 20 May 2014 limiting to two years the maximum period during which the ECB may use the services of the same agency worker for administrative and secretarial tasks;
    2. Dismisses the action as to the remainder;
    3. Orders the ECB to bear its own costs and to pay three quarters of the costs incurred by the International and European Public Services Organisation in the Federal Republic of Germany (IPSO). IPSO is ordered to bear one quarter of its own costs.
  • Paragraphs referring to EU Charter
    1. The applicant refers first of all to the right of workers to information and consultation, provided for in Article 27 of the Charter of Fundamental Rights.
    2. In that regard, it should be noted that Article 27 of the Charter of Fundamental Rights lays down the right of workers to information and consultation within the undertaking. According to the case-law, those provisions may apply in relations between the EU institutions and their staff, as is apparent from the judgment of 19 September 2013, Review of Commission v Strack (C‑579/12 RX-II, EU:C:2013:570).
    3. However, according to the actual wording of Article 27 of the Charter of Fundamental Rights, the exercise of the rights laid down in that article is confined to the cases and conditions provided for by European Union law and national laws and practices (judgment of 15 January 2014, Association de médiation sociale, C‑176/12, EU:C:2014:2, paragraph 45, and order of 11 November 2014, Bergallou v Parliament and Council, T‑22/14, not published, EU:T:2014:954, paragraph 33).
    4. It follows that Article 27 of the Charter of Fundamental Rights, which does not lay down any directly applicable rule of law, is not in itself sufficient to confer on individuals an individual right to consultation and information which they may invoke as such (see, to that effect, judgment of 15 January 2014, Association de médiation sociale, C‑176/12, EU:C:2014:2, paragraph 47).
    5. Consequently, the applicant cannot rely, in this instance, on rights to consultation and information based solely on Article 27 of the Charter of Fundamental Rights.
    6. According to the explanations relating to Article 27 of the Charter of Fundamental Rights, which, under the third paragraph of Article 6(1) TEU and Article 52(7) of the Charter of Fundamental Rights, must be given due regard for the interpretation of the Charter, the Union acquis in the field covered by Article 27 of the Charter of Fundamental Rights, laying down the conditions in which that article applies, is constituted, inter alia, by Directive 2002/14, relied on by the applicant in the present case.
    7. It is therefore necessary to determine whether the applicant might, in this instance, derive the rights it relies on from Article 27 of the Charter of Fundamental Rights, as defined by the provisions of Directive 2002/14.
    1. First of all, it should be noted that the general framework for the information and consultation of workers established by Directive 2002/14 is, it is true, an expression of the fundamental rights laid down in Article 27 of the Charter of Fundamental Rights. However, as was stated in paragraph 86 above, those fundamental rules resulting from Article 27 of the Charter of Fundamental Rights to not apply directly to the ECB for the purposes of the case-law cited in paragraph 105 above, since, as is evident from that provision, they need to be defined further by Union law and national law.
    1. In order to ensure the effectiveness of the right to information and consultation resulting from Article 27 of the Charter of Fundamental Rights, defined by Directive 2002/14 and implemented by the framework agreement as extended to cover agency staff issues by the creation of the working group, the ECB should have given the applicant access to all relevant information concerning the contested act prior to its adoption in order to enable it to prepare an appropriate response to the changes to the institution’s agency staff policy contained in the act, and to organise consultation on the subject, if appropriate, or, at the very least, it should have given the applicant the opportunity to formulate its opinion in the working group and thus be involved in taking any decisions having a possible impact on persons whose interests it defends.
    2. In that regard, it should also be noted, as the applicant points out and as is evident from the purpose of the framework agreement defined in point 2(b) (see paragraph 118 above), that the aim of the right to consultation and information of the applicant trade union is not for the social partners to agree on a subject covered by those procedural guarantees, but only to provide an opportunity for the trade union to influence decision-making. As is clear from the case-law, it is one of the most modest forms of participation in a decision-making process, since in no circumstances does it involve any obligation for the administration to act upon the observations made, but it must afford those concerned, through a representative of their interests, an opportunity to be heard prior to the adoption or amendment of acts of general application which concern them (see, to that effect and by analogy, judgment of 20 November 2003, Cerafogli and Poloni v ECB, T‑63/02, EU:T:2003:308, paragraph 23 and the case-law cited, and paragraph 24), in particular by having access to all relevant information throughout the process of adopting such acts, the objective being to enable a trade union such as the applicant to participate in the consultation process as fully and effectively as possible (see, to that effect and by analogy, judgment of 4 May 2016, Andres and Others v ECB, T‑129/14 P, EU:T:2016:267, paragraph 57).
    3. Consequently, unless it is to undermine the effectiveness of the obligation to consult, the administration must comply with that obligation whenever consultation of workers’ representatives is such as to have an influence on the substance of the measure to be adopted (see, to that effect and by analogy, judgment of 20 November 2003, Cerafogli and Poloni v ECB, T‑63/02, EU:T:2003:308, paragraph 23).
    4. It follows that, in adopting the contested act without first having involved the applicant, even though the subject matter of the act came under the discussions in the working group, and without awaiting the working group’s report, the ECB did not respect the applicant’s rights to be informed and consulted, which form part of its rights and powers as the trade union representing the persons concerned, in breach of Article 27 of the Charter of Fundamental Rights, defined by Directive 2002/14 and implemented by the framework agreement as extended to cover agency staff by the creation of the working group.
    1. In the present case, it is evident from paragraph 148 above that the contested act is unlawful in that it was adopted in breach of the applicant’s rights to be informed and consulted, thus infringing Article 27 of the Charter of Fundamental Rights, defined by Directive 2002/14 and implemented by the framework agreement as extended to cover agency staff by the creation of the working group.