European Court of Justice says ECB infringed fundamental rights of staffIPSO won its court case at the European Court of Justice (ECJ) against the European Central Bank (ECB) on December 13th ("T-713/14 – ECJ").
IPSO claimed information and consultation rights for temporary agency staff assigned to the ECB. In the past the ECB has made use of agency staff for permanent and recurring tasks without these having a safe chance of being taken over into a regular contract. This is not in line with letter and spirit of the rules on temporary agency work and has been denounced by IPSO for years.
The case was about the ECB’s Executive Board decision creating a fait accompli behind the back of the trade union while the union had been working together with the ECB HR function in a task force created by Board member Peter Praet on new rules for agency staff assigned to the ECB. While the report of that task force had not yet been finalised and submitted, in the summer of 2014 the ECB’s Executive Board decided to limit the assignments of assistants at the ECB to two years. This decision was taken without any consultation or prior information and was thus challenged in court by IPSO.
IPSO claimed that as a trade union their rights to be informed beforehand and consulted had been infringed. These rights are the weakest rights that a trade union has, and at the ECB they are the only rights that are granted. These rights are enshrined in Article 27 of the Charter of Fundamental Rights of the EU, stated in the EU directive 2002/14 and mentioned more concretely in a “Memorandum of Understanding” between the ECB and IPSO.
The ECJ decided in favour of IPSO and declared the ECB decision to be null and void. The bottom line being: “It can be concluded that the ECB did not consult the applicant without having previously consulted the applicant although the subject matter of the decision was the topic of the working group and did not wait for the report of the task force to be informed and consulted of the applicant's rights In accordance with Article 27 of the Charter of Fundamental Rights of the European Union, as more precisely defined by Directive 2002/14, implemented by means of a framework agreement, as the applicant is a trade union organization representing the persons concerned, as well as extended to the temporary workers by convening the working group.”
This is a success for the trade union because it strengthens participation rights of staff.
IPSO claims that user undertakings who employ temporary agency staff must hire temporary agency staff if they have proved themselves on permanent positions over a period of two years. If this is not done the market split caused by the installation of temporary labour would miss their mark, creating a class society in the labour market. This is not the Europe for which IPSO stands. The ECJ ruling however did not discuss this aspect as it was not part of the case.
The decision in question was taken by the ECB ahead of changes expected in German law which have been passed by the Bundestag in the meantime. IPSO is disappointed by the changes in the German Arbeitnehmerüberlassungsgesetz (AÜG) because these clearly weaken the rights of temporary workers instead of strengthening them. IPSO has doubts whether the changes in the AÜG comply with European directives.
IPSO will refer to this ruling in the future when, as happened before, the information and consultation rights of ECB staff are not fully respected. IPSO hopes to have helped the change of corporate culture at the ECB towards a better balance of powers.
Discrimination of Staff RepresentativesIn the cases F‑94/14 ("Bowles vs ECB") and F‑94/14 ("Seigneur vs ECB") the Tribunal of the EU Civil Service ruled that the ECB's circular on additional salary advancements specifying conditions for ad personam promotions were discriminating ECB Staff Representatives by excluding them de facto from the possibility to fulfil the eligibility criteria.
In their judgments, the judges stated that the circular was illegal because it puts the plaintiffs in a discriminatory position due to their activity of staff representative (see point 60 in the original French text):
"60. [l' article de la] circulaire est illégal, dans la mesure où cette disposition a placé le requérant dans une position discriminatoire […] en raison de son activité à plein temps en tant que représentant du personnel".
The cases were also reported by the French and the German press as two instances of discrimination (see for instance Article in Les Echos).
These cases are the second and third occasions that the ECB is condemned by the Tribunal for discrimination against Staff Representation.
As a background: Only 10 candidates – and no female – stood for the 9 positions available at the last Staff Committee elections at the ECB in 2014. A post-election survey later revealed that a high number of potential candidates have been discouraged from standing by fear this might negatively impact their career prospects.
At the EU Commission, where the career of staff representatives is aligned with the average career of EU Commission staff, 700 candidates stood for the 108 staff representative positions available at the last elections.
Fundamental Social RightsIn the case Case C-579/12 RX-II ("Strack vs EU Commission") the Court ruled on the impact of the Charter of fundamental rights of the EU on the unity and consistency of EU legislation. This is an important decision indicating that the Court will under certain conditions control formal EU law by the Charter of fundamental rights of the EU.
Staff Representatives' Right to Information and ConsultationIPSO has brought a case claiming that the ECB infringed the fundamental right to information and consultation. This case is pending.
Imposed Change to the ECB's Pension PlanThe ECB changed substantially the pension rules applicable to staff members. More than 150 staff members challenged the decision by an appeal to court. This case has been lost in the first instance and the appeal against the ruling of the Tribunal for the Civil Service is to date still pending.
Equal TreatmentGerman staff members of the ECB claimed equal treatment with respect to the right for an education allowance and won the case in the first instance.
Process to decide on individual salary increases "ASBR"