JUDGMENT OF THE GENERAL COURT (Fourth Chamber, Extended Composition)
4 December 2018 (*)
(Civil service — Members of the contract staff — Reform of the Staff Regulations of 1 January 2014 — Article 6 of Annex X to the Staff Regulations — New provisions relating to the days of leave granted applicable to officials posted in a third country — Objection of illegality — Second paragraph of Article 10 of the Staff Regulations — Articles 7 and 33 of the Charter of Fundamental Rights — Equal treatment — Acquired rights — Legitimate expectations — Legal certainty — Misuse of powers)
In Case T‑517/16,
Andrea Janoha, member of the contract staff of the European Commission, residing in Christ Church (Barbados), and the other members of the contract staff of the European Commission whose names are listed in the annex,(1) represented by O. Mader, lawyer,
applicants,
v
European Commission, represented initially by J. Currall and G. Gattinara, and subsequently by G. Gattinara and A.-C. Simon, acting as Agents,
defendant,
supported by
Council of the European Union, represented initially by M. Bauer and M. Veiga, and subsequently by M. Bauer and R. Meyer, acting as Agents,
intervener,
APPLICATION based on Article 270 TFEU and seeking annulment of the decisions reducing the number of the applicants’ days of annual leave as of 2014,
THE GENERAL COURT (Fourth Chamber, Extended Composition),
composed of H. Kanninen, President, J. Schwarcz, C. Iliopoulos, L. Calvo-Sotelo Ibáñez-Martín (Rapporteur) and I. Reine, Judges,
Registrar: P. Cullen, Administrator,
having regard to the written part of the procedure and further to the hearing on 20 November 2017,
gives the following
Judgment
Background to the dispute
1 The applicants, Mr Andrea Janoha and the other persons whose names are set out in the annex, are members of the contract staff of the European Commission. They are all posted in third countries and were already posted in a third country before 1 January 2014.
2 Under the first paragraph of Article 57 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), applicable by analogy to members of the contract staff by virtue of Articles 16 and 91 of the Conditions of Employment of Other Servants of the European Union (‘the CEOS’), officials and other members of staff are entitled to annual leave of not less than 24 working days nor more than 30 working days per calendar year, in accordance with rules, to be laid down by common accord of the institutions of the European Union, after consulting the Staff Regulations Committee. Pursuant to that provision, the number of days of annual leave was fixed at 24 days of leave, to which supplementary days of leave allocated depending on age and grade are added, subject to the abovementioned limit of 30 days.
3 Annex X to the Staff Regulations nevertheless lays down special and exceptional provisions applicable to officials serving in a third country. Under Article 118 of the CEOS, some of those provisions apply by analogy to contract staff in the same situation. Such is the case with Article 6 of that annex.
4 Article 6 of Annex X to the Staff Regulations, in the version prior to the point at which Regulation (EU, Euratom) No 1023/2013 of the European Parliament and of the Council of 22 October 2013 amending the Staff Regulations of Officials of the European Union and the CEOS (OJ 2013 L 287, p. 15) became effective, provided as follows, in respect of staff posted in third countries:
‘An official shall, per calendar year, be entitled to annual leave of three and a half working days for each month of service.’
5 However, in recital 27 of Regulation No 1023/2013, the EU legislature stated the following:
‘It is appropriate to modernise working conditions for staff employed in third countries and to render them more cost-effective whilst generating cost savings. Annual leave entitlements should be adjusted, and provision should be made for the possibility of including a wider range of parameters to fix the allowance for living conditions, without affecting the overall aim of generating cost savings. The conditions for granting the accommodation allowance should be revised to take better account of local conditions and to reduce the administrative burden.’
6 Since Article 1(70)(a) of Regulation No 1023/2013 came into effect on 1 January 2014, Article 6 of Annex X to the Staff Regulations (‘the new Article 6 of Annex X to the Staff Regulations’) provides as follows, further in respect of officials posted in a third country:
‘An official shall, per calendar year, be entitled to annual leave of two working days for each month of service.
Notwithstanding the first paragraph of this Article, officials posted already in a third country on 1 January 2014 shall be entitled to:
– three working days from 1 January 2014 until 31 December 2014;
– two and half working days from 1 January 2015 until 31 December 2015.’
7 On 16 December 2013, the Commission adopted Decision C(2013) 9051 final on leave (‘the Commission decision of 16 December 2013 on leave’).
8 The applicants’ personal files were updated to take account of the new Article 6, second paragraph, first indent, of Annex X to the Staff Regulations and the applicants were thus allocated 36 working days of annual leave in respect of 2014, as opposed to 42 the previous year (‘the contested decisions’).
9 The applicants submitted complaints between 18 and 28 February 2014. Those complaints were rejected by the Authority Empowered to Conclude Contracts of Employment (‘the AECE’) by decisions of 23 May 2014 (‘the decisions rejecting the complaints’).
Procedure and forms of order sought
10 By application lodged at the Registry of the Civil Service Tribunal of the European Union on 1 September 2014, the applicants brought the present action, which was registered under number F‑86/14.
11 By documents lodged at the Registry of the Tribunal on 29 October 2014 and 10 February 2015 respectively, the Council of the European Union and the European Parliament sought leave to intervene in the present proceedings in support of the form of order sought by the Commission.
12 By decision of 27 November 2014, the Tribunal granted the Council leave to intervene.
13 By order of 25 June 2015, the Tribunal dismissed the Parliament’s application for leave to intervene since it had been made out of time.
14 By order of 25 June 2015, the Tribunal decided to stay the proceedings in the present case until Case T‑17/14 U4U and Others v Parliament and Council had become res judicata.
15 Pursuant to Article 3 of Regulation (EU, Euratom) 2016/1192 of the European Parliament and of the Council of 6 July 2016 on the transfer to the General Court of jurisdiction at first instance in disputes between the European Union and its servants (OJ 2016 L 200, p. 137), the present case was transferred to the General Court as it stood on 31 August 2016 and must be dealt with as of that point in accordance with the Rules of Procedure of the General Court. The case was accordingly registered under number T‑517/16 and assigned to the Fourth Chamber.
16 The case pending which the proceedings had been suspended gave rise to the judgment of 15 September 2016, U4U and Others v Parliament and Council (T‑17/14, not published, EU:T:2016:489). No appeal was lodged against that judgment and it became res judicata.
17 On 26 January 2017, the General Court (Fourth Chamber) decided to invite the parties to respond in writing to a question concerning the inferences to be drawn from the judgment of 15 September 2016, U4U and Others v Parliament and Council (T‑17/14, not published, EU:T:2016:489). The parties complied with the Court’s request within the prescribed period.
18 On the proposal of the Judge-Rapporteur, the Court (Fourth Chamber) decided on 26 July 2017 to open the oral procedure and, by way of measures of organisation of procedure provided for under Article 89 of the Rules of Procedure, to request the parties to answer certain written questions. The parties complied with the Court’s request within the prescribed period.
19 On a proposal from the Fourth Chamber, the Court decided, on 20 September 2017, pursuant to Article 28 of the Rules of Procedure, to refer the case to a chamber sitting in extended composition.
20 On 18 October 2017, the Court (Fourth Chamber, Extended Composition) decided, by way of a measure of organisation of procedure provided for in Article 89 of the Rules of Procedure, to request the parties to answer certain written questions before the hearing. The parties complied with that request within the prescribed period.
21 The parties presented oral argument and gave their replies to the questions asked by the Court at the hearing on 20 November 2017.
22 The applicants claim that the Court should:
– annul the contested decisions;
– declare that the new Article 6 of Annex X to the Staff Regulations and the Commission decision of 16 December 2013 on leave are inapplicable in so far as they reduce the number of their days of annual leave;
– annul the decisions rejecting the complaints;
– order the Commission to pay the costs.
23 The Commission contends that the Court should:
– dismiss the application;
– order the applicants to pay the costs.
24 The Council contends that the Court should:
– declare the objection of illegality of the new Article 6 of Annex X to the Staff Regulations unfounded;
– dismiss the application.
Law
The applicants’ second head of claim seeking that the General Court declare inapplicable the new Article 6 of Annex X to the Staff Regulations and the Commission decision of 16 December 2013 on leave
25 In their second head of claim, the applicants request the Court to declare inapplicable the new Article 6 of Annex X to the Staff Regulations and the Commission decision of 16 December 2013 on leave.
26 It must be recalled, in this connection, that it is not for the EU judicature to make findings of principle in the operative part of its judgments (see, to that effect, judgment of 16 December 2004, De Nicola v EIB, T‑120/01 and T‑300/01, EU:T:2004:367, paragraphs 136 and 137). However, it is clear in the present case that the second head of claim must be understood as not being distinct from the first head of claim, inasmuch as, in essence, the applicants are indirectly putting forward the inapplicability of the new Article 6 of Annex X to the Staff Regulations and of the Commission decision of 16 December 2013 on leave in support of their claim for annulment of the decisions reducing their annual leave in respect of 2014.
The applicants’ third head of claim seeking that the General Court annul the decisions rejecting the complaints
27 In their third head of claim, the applicants are requesting that the Court annul the decisions rejecting the complaints in so far as they concern the applicants’ right to annual leave.
28 It must be recalled in this connection that it is settled case-law that the administrative complaint and its rejection, whether express or implied, constitute an integral part of a complex procedure and are no more than a precondition for bringing the matter before the judicature (judgments of 21 September 2011, Adjemian and Others v Commission, T‑325/09 P, EU:T:2011:506, paragraph 32, and of 15 September 2017, Skareby v EEAS, T‑585/16, EU:T:2017:613, paragraph 18). Therefore, since, under the system laid down in the Staff Regulations, the person concerned must submit a complaint against the decision which he is contesting, the subsequent action is considered admissible whether it is directed against the initial decision alone, the decision rejecting the complaint or both, provided, however, that the complaint and the appeal were lodged within the periods prescribed by Articles 90 and 91 of the Staff Regulations. However, in accordance with the principle of economy of procedure, the judicature may decide that it is not appropriate to rule specifically on the claims directed against the decision rejecting the complaint where it finds that those claims have no independent content and are, in reality, the same as those directed against the decision against which the complaint has been made. That may, in particular, be the case where it finds that the decision rejecting the complaint is purely confirmatory of the decision which is the subject of the complaint and that, therefore, the annulment of the rejection of the complaint would have no effect on the legal position of the person concerned distinct from that which follows from the annulment of the initial decision (see, to that effect, judgment of 21 September 2011, Adjemian and Others v Commission, T‑325/09 P, EU:T:2011:506, paragraph 33).
29 Conversely, an express decision rejecting a complaint may, in the light of its content, not be confirmatory of the act contested by the applicant. That is the case where the decision rejecting the complaint contains a re-examination of the applicant’s situation in the light of new elements of law or of fact, or where it changes or adds to the original decision (see judgment of 21 September 2011, Adjemian and Others v Commission, T‑325/09 P, EU:T:2011:506, paragraph 32 and the case-law cited).
30 In the present case, the rejection of the complaints neither contains a re-examination of the applicants’ situation in the light of new elements of law or of fact nor amends the contested decisions. The decisions rejecting the complaints simply confirm the contested decisions. The claim seeking annulment of the decisions rejecting the complaints has therefore, as such, no independent content and is, in reality, the same as the claim for annulment of the contested decisions. In those circumstances, the claim for annulment must be regarded as formally directed against only the contested decisions.
31 It must therefore be held that the applicants’ third head of claim cannot be distinguished from their first head of claim, seeking that the Court annul the contested decisions.
The applicants’ first head of claim, seeking that the Court annul the contested decisions
The characterisation of the contested decisions as acts adversely affecting the applicants
32 The Commission and the Council submit that the contested decisions are not, as such, challengeable acts, since they simply reflect the implementation of a legislative amendment made by the new Article 6 of Annex X to the Staff Regulations. As a result, the contested decisions cannot be regarded as decisions adopted by the AECE and are merely a technical consequence of the entry into force of the new Article 6 of Annex X to the Staff Regulations.
33 The applicants submit that the application is admissible inasmuch as, in their respect, the contested decisions implement acts of general application with binding legal effect.
34 In this connection, it is established case-law that only acts producing binding legal effects such as to directly and individually affect the interests of the persons concerned, by significantly altering their legal position, can be regarded as adversely affecting them (see order of 3 December 1992, Moat v Commission, C‑32/92 P, EU:C:1992:496, paragraph 9 and the case-law cited).
35 If, following the entry into force of an act of generally application, the rights of an abstract category of officials or other members of staff are affected, the administrative measures which are a consequence of that amendment inevitably translate, for the persons to whom they are addressed, into the adoption of administrative decisions which are individual in scope, producing binding legal effects such as to directly and immediately affect the interests of the officials concerned and which must be regarded as acts adversely affecting them (see, to that effect, judgments of 4 July 1985, Delhez and Others v Commission, 264/83, EU:C:1985:293, paragraph 20, and of 25 May 2000, Kögler v Court of Justice, C‑82/98 P, EU:C:2000:282, paragraph 49).
36 It follows from the foregoing that the contested decisions must be regarded as acts adversely affecting the applicants.
The subject matter of the first head of claim and the consequences for the objection of illegality raised by the applicants
37 Since the contested decisions determined the number of days of annual leave in respect of 2014 alone, the issue arises of whether it is admissible for the applicants to put forward, as they have, pleas based on objections of illegality directed not only against the new Article 6, second paragraph, first indent, of Annex X to the Staff Regulations, on annual leave for 2014, but also more generally against the first paragraph of that article determining the number of days of annual leave from 2016 onwards.
38 In response to the measure of organisation of procedure mentioned in paragraph 20 above, the applicants submitted that they had an interest in pleading the illegality of the new Article 6 of Annex X to the Staff Regulations in its entirety, since the transitional period was merely a buffering mechanism, and that it was only by taking the provision into consideration in its entirety that it was possible to understand its scope, which was essential to the outcome of the case.
39 By contrast, the Commission and the Council submit that the objections of illegality could be directed only against the new Article 6, second paragraph, first indent, of Annex X to the Staff Regulations, on the ground that an objection of illegality did not constitute an autonomous right of action and therefore it could be only ancillary in scope, limited to the subject matter of the action.
40 It is settled case-law that an objection of illegality raised indirectly under Article 277 TFEU, when challenging in the main proceedings the legality of another act, is admissible only if there is a link between the contested act and the provision forming the subject matter of the objection. 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 an objection of illegality must be limited to what is necessary for the outcome of the proceedings (see judgment of 12 June 2015, Health Food Manufacturers’ Association and Others v Commission, T‑296/12, EU:T:2015:375, paragraph 170 and the case-law cited). It follows that the act of general application 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 act of general application in question (judgments of 15 March 2017, Fernández González v Commission, T‑455/16 P, not published, EU:T:2017:169, paragraph 34, and of 22 November 2017, von Blumenthal and Others v EIB, T‑558/16, not published, EU:T:2017:827, paragraph 71).
41 Nevertheless, Article 277 TFEU must be interpreted sufficiently broadly to enable effective judicial review of the legality of acts of the institutions of a general nature in favour of persons excluded from direct actions against such acts (judgments of 26 October 1993, Reinarz v Commission, T‑6/92 and T‑52/92, EU:T:1993:89, paragraph 56, and of 21 October 2010, Agapiou Joséphidès v Commission and EACEA, T‑439/08, not published, EU:T:2010:442, paragraph 50). Thus, the scope of Article 277 TFEU must extend to acts of the institutions which were relevant to the adoption of the decision forming the subject matter of the action for annulment (judgments of 4 March 1998, De Abreu v Court of Justice, T‑146/96, EU:T:1998:50, paragraph 27, and of 2 October 2001, Martinez and Others v Parliament, T‑222/99, T‑327/99 and T‑329/99, EU:T:2001:242, paragraph 135), in the sense that that decision must essentially be based on them (judgment of 12 June 2015, Health Food Manufacturers’ Association and Others v Commission, T‑296/12, EU:T:2015:375, paragraph 172), even if such acts did not formally constitute the legal basis of that decision (judgments of 2 October 2001, Martinez and Others v Parliament, T‑222/99, T‑327/99 and T‑329/99, EU:T:2001:242, paragraph 135; of 20 November 2007, Ianniello v Commission, T‑308/04, EU:T:2007:347, paragraph 33; and of 2 October 2014, Spraylat v ECHA, T‑177/12, EU:T:2014:849, paragraph 25).
42 In the present case, the applicants had 42 days of annual leave in 2013 under Article 6 of Annex X to the Staff Regulations in the version prior to the entry into force of Article 1(70)(a) of Regulation No 1023/2013. In 2014, when the action was brought, that was altered to only 36 days of annual leave under the new Article 6, second paragraph, first indent, of Annex X to the Staff Regulations. In 2015, they were to have only 30 days of annual leave under the second indent of the second paragraph of that article. Finally, from 2016, the applicants were to be entitled, in principle, to only 24 days of leave per year, in accordance with the first paragraph of the new Article 6 of Annex X to the Staff Regulations.
43 The competent authority thus has no discretion for the purposes of determining the number of days of annual leave. Moreover, a contextual and systemic interpretation of the new Article 6 of Annex X to the Staff Regulations shows that the first indent of the second paragraph thereof, directly applicable to the contested decisions, was a transitional provision, while the first paragraph of that article forms the definitive new regime for the annual leave of officials and other members of staff posted in third countries.
44 Accordingly, the very nature of a transitional period is to organise the progressive shift from one regime to another (judgment of 6 July 2017, Bodson and Others v EIB, T‑508/16, not published, EU:T:2017:469, paragraph 117) in order to resolve difficulties inherent in putting the new regime in place or avoiding a sudden change in the old regime.
45 Having regard to the link between transitional provisions and definitive provisions, the former having no raison d’être without the latter, and in the light of the fact that the competent authority has no discretion, it must be held here that there is a direct legal connection between the contested decisions and the new Article 6, first paragraph, of Annex X to the Staff Regulations and that, since that first paragraph is the culmination of the new Article 6, second paragraph, first indent, of Annex X to the Staff Regulations, it is at least indirectly applicable to those decisions inasmuch as it was relevant for the purposes of their adoption in so far as they were essentially based on it, even if was not their formal legal basis.
46 Thus, from the applicants’ perspective, the contested decisions were the first application of the new Article 6 of Annex X to the Staff Regulations, with the result that, as of 2016, the applicants were to have only 24 days of leave.
47 Consequently, even if the contested decisions are formally based on the transitional provision which concerns exclusively 2014, contained in the first indent of the second paragraph of the new Article 6 of Annex X to the Staff Regulations, the applicants’ challenge, by way of an objection, to the legality of the definitive annual leave regime determined under the first paragraph of that article is also admissible.
The pleas in law
48 The applicants put forward five pleas in law in support of their action. The first plea alleges infringement of the second paragraph of Article 10 of the Staff Regulations. The second plea alleges infringement of Articles 7 and 33 of the Charter of Fundamental Rights of the European Union (‘the Charter’). The third plea alleges infringement of the principle of equal treatment and of Article 20 of the Charter. The fourth plea alleges breach of the applicants’ contracts, and infringement of the principles of the protection of legitimate expectations, of acquired rights and of legal certainty. The fifth plea alleges misuse of powers. All of the applicants’ pleas raise an objection of illegality against the new Article 6 of Annex X to the Staff Regulations.
The first plea, alleging infringement of the second paragraph of Article 10 of the Staff Regulations
49 The applicants raise an objection of illegality against the new Article 6 of Annex X to the Staff Regulations, submitting, essentially, that during the legislative process for the adoption of Regulation No 1023/2013 amending the Staff Regulations, Article 27 of the Charter and the second paragraph of Article 10 of the Staff Regulations were infringed inasmuch as the Staff Regulations Committee was not consulted on the reduction of the days of leave of officials posted in a third country. By their first plea, the applicants are thus seeking to argue the infringement of the second paragraph of Article 10 of the Staff Regulations and of Article 27 of the Charter.
50 The Commission and the Council contest the applicants’ arguments.
51 In the decisions rejecting the complaints, the AECE pointed out that Article 10 of the Staff Regulations was a direct expression of the principle enshrined in Article 27 of the Charter, namely the principle of workers’ right to information and consultation. The AECE stated that such a principle had to be observed under the conditions provided for by European Union law. It argued that such conditions were, in the present case, determined by Article 10 of the Staff Regulations so that where the principles under Article 10 had been observed, Article 27 of the Charter must be considered to have been observed. In that context, the AECE noted that Article 10 of the Staff Regulations had been observed in the consultation of the Staff Regulations Committee on the proposal for revision dated 21 November 2011 and that the Staff Regulations Committee had been consulted a second time on 5 July 2013, even though that proposal had not been substantially amended.
52 The second paragraph of Article 10 of the Staff Regulations provides:
‘The Committee shall be consulted by the Commission on all proposals to revise the Staff Regulations; it shall deliver its opinion within the time set by the Commission. In addition to the functions conferred upon the Committee by these Staff Regulations, it may put forward suggestions for revising the Staff Regulations. The Committee shall meet at the request of its Chairman, and institution or the staff committee of an institution.’
53 In this connection, it is apparent from paragraph 135 of the judgment of 15 September 2016, U4U and Others v Parliament and Council (T‑17/14, not published, EU:T:2016:489) that Article 10 of the Staff Regulations is to be interpreted to the effect that it is only where the Commission itself amends its proposal for revision of the Staff Regulations during the ordinary legislative process that it is under an obligation to consult the Staff Regulations Committee again prior to the adoption by the Council of the regulatory provisions concerned, where that amendment substantially affects the scheme of the proposal.
54 In reply to the question put to the applicants as to the consequences to be inferred from the judgment of 15 September 2016, U4U and Others v Parliament and Council (T‑17/14, not published, EU:T:2016:489), the applicants concede that, in so far as the General Court should decide to follow in the present case the interpretation of Article 10 of the Staff Regulations provided in that judgment, the first plea must be rejected. However, they maintain that such an interpretation renders that provision ineffective and rather that it should be interpreted to the effect that the Commission is required to consult the Staff Regulations Committee again where amendments to the proposal for revision are introduced by the Parliament and the Council.
55 In the present case, it must be held that, although the Commission used its power of legislative initiative in submitting the proposal for amendment of the Staff Regulations, it did not use that power itself to amend its proposal, the amendment having been inserted during the negotiations before the Parliament (see, to that effect, judgment of 15 September 2016, U4U and Others v Parliament and Council, T‑17/14, not published, EU:T:2016:489, paragraphs 136 to 139).
56 Accordingly, the Commission was not required to consult the Committee again, irrespective of the substantial nature of the amendments adopted by the Parliament concerning the new Article 6 of Annex X to the Staff Regulations. Article 10 of the Staff Regulations was thus observed in the present case.
57 It follows from the previous paragraph that Article 27 of the Charter was also observed in the present case.
58 The first plea must consequently be rejected as unfounded.
The second plea, alleging infringement of Articles 7 and 33 of the Charter
59 The applicants raise an objection of illegality against the new Article 6 of Annex X to the Staff Regulations, alleging that it infringes Articles 7 and 33 of the Charter. The applicants claim that the new Article 6 of Annex X to the Staff Regulations constitutes an interference in their rights to respect for private and family life enshrined in Article 7 and Article 33(1) of the Charter.
60 In this connection, the applicants argue that the reduction in their days of basic annual leave automatically renders it impossible to maintain satisfactorily their family relations and their personal links to the centres of their principal interests, since family life requires the ability of those concerned to be available in person for their family. They also point out that the case-law of the European Court of Human Rights (‘ECtHR’) interprets the notion of private life broadly.
61 The Commission and the Council contend that the present plea should be rejected, submitting that there is no link between the protection of the right to family life and the applicants’ number of days of annual leave. They also submit that other provisions of the Staff Regulations take account of the right of respect for family life of the staff posted in third countries, such as Article 7(3) of Annex VII to the Staff Regulations, concerning the calculation of the amount of annual travel expenses, Article 8(1) of Annex VII to the Staff Regulations, concerning the flat-rate reimbursement of travel expenses, Article 7(1) of Annex VII to the Staff Regulations, concerning the reimbursement of travel expenses to the place of employment, and the second paragraph of Article 7 of Annex V to the Staff Regulations, on the travelling time added to the annual leave. They also point out that the current social context is characterised by significant changes in communication and travel as against 2004, when the last revision of the Staff Regulations took place.
62 In the decisions rejecting the complaints, the AECE held that Article 7 of the Charter did not provide for any specific right to annual leave for officials and other members of staff. It pointed out that the right to annual leave was laid down in Article 31 of the Charter. The AECE also took the view that the possibility of maintaining family relations was not prevented by the reduction in annual leave, inasmuch as those relations did not require the people concerned to be present in person or to travel during leave to the places where their family and social circles were located. It argued that that was the case thanks to the internet, which is now available at very low costs. The AECE observed that the number of days of annual leave was also important for officials and other staff posted within the European Union, where their place of origin was different from their place of employment, and that those latter officials and other members of staff had the same basic annual leave entitlement as the applicants. Lastly, the AECE stated that officials and members of staff posted in third countries were entitled to leave of up to five days per year to travel to their place of origin, depending on the distance between their place of employment and their place of origin, while officials posted within the European Union were entitled only to two and a half days per year.
63 Article 7 of the Charter provides that ‘everyone has the right to respect for his or her private and family life, home and communications’.
64 Article 33(1) of the Charter provides that ‘the family shall enjoy legal, economic and social protection’.
65 It must be recalled that the duty to respect fundamental rights is imposed, in accordance with Article 51(1) of the Charter, on all the institutions and bodies of the European Union (judgment of 4 February 2014, Syrian Lebanese Commercial Bank v Council, T‑174/12 and T‑80/13, EU:T:2014:52, paragraph 162).
66 It must also be noted that, according to Article 52(3) of the Charter, in so far as the Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, their meaning and scope is the same as laid down by that convention, including as it is interpreted in the light of the case-law of the ECtHR, which must be taken into account under that provision (see, to that effect, judgments of 16 February 2017, C. K. and Others, C‑578/16 PPU, EU:C:2017:127, paragraph 67; of 15 March 2017, Al Chodor, C‑528/15, EU:C:2017:213, paragraph 37; and of 11 October 2017, Osho Lotus Commune v EUIPO — Osho International Foundation (OSHO), T‑670/15, not published, EU:T:2017:716, paragraph 114).
67 In the present case, Article 7 of the Charter corresponds to Article 8(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms and Article 33(1) of the Charter lays down obligations which also follow from that stipulation.
68 As regards the issue of whether the new Article 6 of Annex X to the Staff Regulations restricts the right to respect for private life, it must be stated that, in the application, the applicants did not substantiate in specific terms any particular breach of that right.
69 Moreover and in any event, according to the case-law of the ECtHR the notion of ‘private life’ cannot be defined exhaustively and it would be too restrictive to limit it to an ‘inner circle’ in which the individual may live his own personal life as he chooses and to exclude entirely the outside world not encompassed within that circle. In that context, the ECtHR held that there was no reason of principle why the notion of ‘private life’ should be taken to exclude professional activities and that it is, on the contrary, in the course of their work that the majority of people have a significant, if not the greatest, opportunity of developing relationships with the outside world (ECtHR, 16 December 1992, Niemietzv. Germany, CE:ECHR:1992:1216JUD001371088, paragraph 29).
70 In so far as the right to respect for private life is also exercised at work, the reduction in the days of annual leave cannot be regarded, on principle, as having in itself an influence on that right.
71 As regards the issue of whether the new Article 6 of Annex X to the Staff Regulations restricts the right to respect for family life, it must be observed that the ECtHR has held that the existence or non-existence of ‘family life’ is a question of fact depending upon the real existence in practice of close personal ties (ECtHR, 12 July 2001, K. and T.v. Finland, CE:ECHR:2001:0712JUD002570294, paragraph 150). The ECtHR also held that the mutual enjoyment by members of a family of each other’s company constitutes a fundamental element of family life (ECtHR, 12 July 2011, K. and T.v. Finland, CE:ECHR:2001:0712JUD002570294, paragraph 151, and 13 December 2012, El-Masriv.The Former Yugoslav Republic of Macedonia, CE:ECHR:2012:1213JUD003963009, paragraph 248).
72 The purpose of the right to annual leave is, for its part, to enable the worker to rest and to enjoy a period of relaxation and leisure (judgment of 20 January 2009, Schultz-Hoff and Others, C‑350/06 and C‑520/06, EU:C:2009:18, paragraph 25) and thereby to protect his health and safety (see, to that effect, judgment of 14 October 2010, Union syndicale Solidaires Isère, C‑428/09, EU:C:2010:612, paragraph 37, and order of 4 March 2011, Grigore, C‑258/10, not published, EU:C:2011:122, paragraph 40). It does not necessarily have to be spent on family life. Consequently, inasmuch as the way in which leave days are spent is a personal choice which is not subject to any obligation in terms of family or residence, the relationship between the number of days of annual leave and respect for family life is too uncertain and indirect to be taken into consideration.
73 It must therefore be concluded that the reduction in the applicants’ days of annual leave cannot be regarded as constituting a restriction of their right to respect for family life.
74 In addition, the applicants submit that the Court’s case-law has acknowledged a general principle of the law governing the EU civil service to the effect that it must be possible for an official to retain his personal links with the place where his principal interests are situated (judgment of 2 May 1985, De Angelis v Commission, 144/84, EU:C:1985:171, paragraph 13). They point out the places where their principal interests are located are in their countries of origin and that, according to that case-law, the place of principal interests is the place of main family ties, heritable interests and essential citizen’s interests.
75 Admittedly, it has been acknowledged in the case-law that the possibility for the official to retain his personal links with the place where his principal interests are situated is a general principle of the law governing the EU civil service (judgments of 2 May 1985, De Angelis v Commission, 144/84, EU:C:1985:171, paragraph 13, and of 26 September 1990, Beltrante and Others v Council, T‑48/89, EU:T:1990:50, paragraph 27). However, that case-law is based on the requirements of Annex VII to the Staff Regulations, which deals with the rules on remuneration and reimbursement of expenses, such as travel expenses (judgment of 23 January 2007, Chassagne v Commission, F‑43/05, EU:F:2007:14, paragraph 54), and not on the right to paid annual leave, whose purpose is not to retain the personal links of officials and other members of staff with the place in which their principal interests are situated.
76 It follows from all the foregoing that the second plea must be rejected.
The third plea, alleging infringement of the principle of equal treatment and of Article 20 of the Charter
77 The applicants raise an objection of illegality against the new Article 6 of Annex X to the Staff Regulations in so far as that provision infringes the principle of equal treatment and Article 20 of the Charter.
78 The applicants take the view that officials and other members of staff posted in third countries are in a different situation to that of staff posted within the European Union, and that such a difference must be taken into account by the legislature in the determination of the right to basic annual leave of staff working in delegations. They argue that the fact that Annex X to the Staff Regulations exists, in particular Article 6 thereof concerning the right to annual leave, shows that differentiated provisions must be laid down for staff in delegations.
79 Moreover, the applicants observe that the intended purpose of the 42 days of annual leave to which they had been entitled before the reform in question was to make up for the disadvantages as a result of being away from their place of residence and to grant them the time required to travel to their centres of interest in order to maintain personal links, undergo medical checks, uphold family relations, take up social and civic engagements and take care of administrative and citizens’ obligations back in their countries of origin. They state that they live in precarious security conditions, that they are isolated from their relatives, friends and family and suffer stress related to the distance and the different living conditions.
80 The Commission, supported by the Council, contends that the plea should be rejected and argues that the new Article 6 of Annex X to the Staff Regulations does not infringe the principle of equal treatment. It submits that, to assess the lawfulness of the new article, all of the provisions applicable to the applicants must be analysed, in particular the allowance for living conditions, provided for in Article 10 of Annex X to the Staff Regulations, the rest leave provided for in Article 8 of that annex, and the greater travelling time than that granted to staff posted within the European Union, provided for in the second paragraph of Article 7 of Annex V to the Staff Regulations.
81 In the decisions rejecting the complaints, the AECE found that the amendment of the basic annual leave entitlement of officials and other staff in third countries did not breach the principle of equal treatment inasmuch as, even though that entitlement had been rendered equivalent to the basic entitlement of officials and other staff employed within the European Union, Annex X to the Staff Regulations provided for special rules which took into account the specific living conditions which might obtain in various third countries. Those rules were, in particular, the rest leave, the greater travelling time and the allowance for living conditions. Furthermore, the AECE stated that the existence of difficult living conditions in certain third countries would not have justified granting a basic annual leave entitlement greater than that granted to all members of staff and officials posted in third countries since in some third countries the living conditions were equivalent to those within the European Union. Moreover, the AECE observed that the EU legislature had a wide discretion so far as amendments to the provisions of the Staff Regulations were concerned.
82 The principle of equal treatment constitutes a general principle of EU law, which has now also been enshrined in Articles 20 and 21 of the Charter, and which requires that comparable situations must not be treated differently and different situations must not be treated in the same way unless such treatment is objectively justified. With regard to the requirement relating to the comparability of the situations for the purpose of determining whether there is an infringement of the principle of equal treatment, that requirement must be assessed in the light of all the factors characterising those situations and the assessment of that comparability must be carried out not in a global and abstract manner, but in a specific and concrete manner in the light of the objective and of the aim of the EU act creating the distinction at issue. The principles and objectives of the field to which that act relates must also be taken into account (see, to that effect, judgments of 9 March 2017, Milkova, C‑406/15, EU:C:2017:198, paragraphs 56 and 57, and of 26 July 2017, Europa Way and Persidera, C‑560/15, EU:C:2017:593, paragraph 69). In order to determine whether the principle of equal treatment has been infringed, the assessment must be based on an analysis focusing on all the rules of law governing the positions of each of the situations to be compared, taking account inter alia of the purpose of the contested provision (see, to that effect, judgment of 9 March 2017, Milkova, C‑406/15, EU:C:2017:198, paragraphs 58 and 62).
83 The applicants claim that officials and other members of staff posted in third countries are not in a situation comparable to that of officials and other members of staff posted within the European Union and that therefore those two categories cannot be treated identically.
84 The purpose of the right to annual leave is to enable the worker to rest and to enjoy a period of relaxation and leisure in relation to his duties (see paragraph 72 above). Accordingly, the issue of whether or not officials and other staff posted in third countries are in a different situation to officials and other staff posted within the European Union must be assessed in the light of the living conditions in which the former perform their duties.
85 It must be stated in this respect, as the Commission and the Council contend, that the living conditions in certain countries may be regarded as equivalent to those normally obtaining in the European Union. Such equivalence is specifically taken into account by Article 10 of Annex X to the Staff Regulations which, for the purposes of granting an allowance for living conditions, differentiates between officials employed in third countries in which the living conditions can be deemed equivalent to those obtaining in the European Union and officials employed in third countries where the living conditions cannot be deemed equivalent to those obtaining in the European Union.
86 It must be stated that, in addition to the annual leave to which all officials and other members of staff are entitled, officials and other members of staff employed in third countries where the living conditions are equivalent to the living conditions in the European Union are entitled, under the second paragraph of Article 7 of Annex X to the Staff Regulations, to carry over to the following year a maximum of 14 working days of leave which has not been used up, as against 12 working days, under the first paragraph of Article 4 of Annex V to the Staff Regulations, for officials working within the European Union. Furthermore, it is apparent from the second paragraph of Article 7 of Annex V to the Staff Regulations that the travelling time, normally set at two and a half days of leave, is longer for staff employed in a third country where that is warranted by their needs.
87 Officials and other members of staff employed in third countries where the living conditions are not equivalent to those in the European Union may obtain rest leave on the basis of Article 8 of Annex X to the Staff Regulations, in addition to carrying over annual leave and being granted travelling time under the same conditions as officials and other members of staff posted in third countries where the living conditions are equivalent to those in the European Union.
88 It follows from the foregoing that there are differences in the rules applicable to officials and other members of staff posted within the European Union, to officials and other members of staff posted in third countries with living conditions equivalent to those in the European Union and to officials and other members of staff in third countries where the living conditions are not equivalent, linked to the respective situations of the persons concerned, and that those rules therefore do not infringe the principle of equal treatment.
89 It is consequently unnecessary to examine the arguments of the parties in relation to justification for alleged discrimination.
90 Furthermore, the applicants argue that the arbitrary nature of the reduction in the basic annual leave entitlement to 24 days was shown by the fact that staff in the administration of the Member States in delegations are on average entitled to 41.5 days of leave per year.
91 It must be observed in this connection, as it was by the Commission, that such an argument is irrelevant and lacks clarity. The applicants do not give the national rules to which they are referring. Moreover, the Staff Regulations and the CEOS were adopted by an EU regulation, which is distinct from the law applicable to officials and other members of staff of the Member States’ administrations.
92 The applicants also observe that the local staff working in EU delegations have the same basic annual leave entitlement as the applicants, even though those members of staff are originally from the country where the delegation is located.
93 Nevertheless, it is apparent from Article 120 of the CEOS that the leave of local staff is determined by the AECE not on the basis of the Staff Regulations or the CEOS, but in accordance with the current rules and practice in the place where they are to perform their duties. Thus, neither the Commission decision of 16 December 2013 on leave nor the Commission decision on management of rest leaves pursuant to Article 8 of Annex X to the Staff Regulations applies to local staff. Those staff are therefore not in the same legal position as the applicants. Moreover, the applicants do not provide any details on the procedure by which local staff are granted annual leave, such as any extension of the leave duration in accordance with age and grade or the carrying over of leave not taken in one year to the next year.
94 In the light of the foregoing, the third plea must be rejected.
The fourth plea, alleging breach of the applicants’ contracts and their acquired rights, and infringement of the principles of the protection of legitimate expectations and of legal certainty
95 The applicants claim that the new Article 6 of Annex X to the Staff Regulations infringes the principles of protection of legitimate expectations and of legal certainty and that it constitutes a breach of their contracts and their acquired rights.
96 The Commission and the Council dispute the applicants’ arguments.
97 In the decisions rejecting the complaints, the AECE first reiterated the case-law that the legal link between the officials and staff of the European Union and the administration is based on the Staff Regulations or the CEOS and that it is not of a contractual nature (judgments of 4 March 2010, Angé Serrano and Others v Parliament, C‑496/08 P, EU:C:2010:116, paragraph 82, and of 11 July 1996, Aubineau v Commission, T‑102/95, EU:T:1996:104, paragraphs 22 and 27). It also reiterated the case-law that a right must be considered to be acquired only when the event giving rise to it occurred under the legislation before it was amended. The AECE also stated that, under Article 57 of the Staff Regulations, officials were entitled to annual leave of between 24 and 30 days per year, depending on their age. Lastly, it drew attention to the fact that the reduction in days of leave in question had been accompanied by a two-year transitional period.
98 First, the applicants argue that they placed their legitimate expectation in the observance of their rights and obligations under the Staff Regulations, in particular their right to annual leave, derived from the individual contracts which were appropriate to their working conditions and which contained a reference to the CEOS. They state that those conditions were considered to be balanced at the time when their contracts were signed. They submit that, according to the case-law of the Administrative Tribunal of the International Labour Organisation (ILO), in order to determine whether the principles of the protection of legitimate expectations and the protection of acquired rights have been breached, it is necessary to analyse whether the amendments alter fundamental terms, if they adversely affect the balance of contractual obligations and if the nature of those amendments is such as to induce the worker to accept an appointment or to stay on. So far as the breach of their contracts is concerned, the applicants note that, in the case which gave rise to the judgment of 7 July 2009, Lebedef v Commission, F‑39/08 (EU:F:2009:85, paragraph 70), the Civil Service Tribunal acknowledged a difference between officials and members of the contract staff in terms of the nature of the employment relationship, which is governed by the Staff Regulations in the case of officials and a contract in the case of members of the contract staff.
99 It is important to state that, according to settled case-law, officials and other members of staff cannot rely on the principle of the protection of legitimate expectations in order to oppose the lawfulness of a new legislative provision, especially in a sphere in which the legislature enjoys, as in the present case, a considerable degree of latitude as regards the necessity of making reforms to the Staff Regulations (see, to that effect, judgments of 22 December 2008, Centeno Mediavilla and Others v Commission, C‑443/07 P, EU:C:2008:767, paragraphs 90 and 91, and of 13 October 2015, Commission v Verile and Gjergji, T‑104/14 P, EU:T:2015:776, paragraph 170).
100 Moreover, it follows from the case-law that, where the contracts are concluded with an EU institution, entrusted with public interest responsibilities and authorised to lay down, by regulation, provisions applicable to its staff, the consent of the parties to such a contract is necessarily circumscribed by all manner of obligations deriving from those particular responsibilities. Therefore, by signing a contract with the AECE, the staff agree to be bound by the CEOS without being able to negotiate individually any of their terms. Consent is thus limited in particular to acceptance of the rights and obligations laid down by the CEOS (see, by analogy, judgments of 14 October 2004, Pflugradt v ECB, C‑409/02 P, EU:C:2004:625, paragraphs 34 and 35, and of 26 February 2016, Bodson and Others v EIB, T‑240/14 P, EU:T:2016:104, paragraph 37). Consequently, the applicants may not rely on the nature of the contracts linking them to the European Union in order to challenge an amendment by the legislature to Article 6 of Annex X to the Staff Regulations.
101 Accordingly, it cannot be held that the principle of legitimate expectations was infringed or the applicants’ contracts breached in the present case.
102 Secondly, it must be recalled that the principle of legal certainty only applies to situations of the type at issue in the present case where an EU regulatory act takes effect from a point in time before its publication (see, to that effect, judgment of 9 January 1990, SAFA, C‑337/88, EU:C:1990:1, paragraph 13) and where EU rules apply to situations existing before their entry into force (see, to that effect, judgment of 10 February 1982, Bout, 21/81, EU:C:1982:47, paragraph 13), neither of which apply in the present case. Furthermore, according to consistent case-law, it is well established that where provisions of general application are amended, especially provisions of the Staff Regulations, a new rule applies immediately to the future effects of the legal situations which arose, without however being fully constituted, under the old rule (judgments of 14 April 1970, Brock, 68/69, EU:C:1970:24, paragraph 7; of 5 December 1973, SOPAD, 143/73, EU:C:1973:145, paragraph 8; and of 10 July 1986, Licata v ESC, 270/84, EU:C:1986:304, paragraph 31). An official cannot claim an acquired right unless the facts giving rise to that right arose under a particular set of Staff Regulations prior to the amendment of the provisions of those Staff Regulations (judgment of 19 March 1975, Gillet v Commission, 28/74, EU:C:1975:46, paragraph 5).
103 As the AECE points out in the decisions rejecting the complaints, the applicants’ entitlement to annual leave in respect of 2014 arose under Regulation No 1023/2013, which entered into force on 1 January 2014 without retroactive effect. Consequently, given that the annual leave entitlement is set every year according to actual duty time, it must be stated that the applicants have no acquired right, arising under the former version of the Staff Regulations, so far as concerns the annual leave entitlement in respect of 2014.
104 The principles of legal certainty and respect for the applicants’ acquired rights cannot therefore be considered to have been infringed in the present case.
105 In the light of the foregoing considerations, the fourth plea must be rejected.
The fifth plea, alleging misuse of powers
106 First, the applicants dispute the fact that the EU legislature must be conceded wide discretion when amending the Staff Regulations. Nonetheless, they assert that even if the legislature were recognised as enjoying wide discretion in this field, the new Article 6 of Annex X to the Staff Regulations should not be applied since it is vitiated by a misuse of powers and it is the result of the bounds of the discretion having been manifestly exceeded. The applicants submit in this connection that the reduction in the days of annual leave as inserted by the new Article 6 of Annex X to the Staff Regulations constitutes a misuse of power, inasmuch as it pursues an improper goal, other than the formal objectives of generating cost savings, modernising the EU civil service and ensuring the transparency of the administration, which are specifically mentioned in Regulation No 1023/2013.
107 Secondly, the applicants maintain that by unilaterally making an amendment to the contractual conditions, the AECE has exceeded the bounds of its discretion and misused its powers as the stronger party to the contract.
108 The applicants thus plead that both the legislature and the AECE misused their powers and exceeded the bounds of their discretion.
109 The Commission and the Council contest the applicants’ arguments.
110 It is settled case-law that an act is vitiated by misuse of powers only if it appears, on the basis of objective, relevant and consistent evidence to have been taken with the exclusive or main purpose of achieving an end other than that stated or evading a procedure specifically prescribed by the Treaty (see judgment of 10 March 2005, Spain v Council, C‑342/03, EU:C:2005:151, paragraph 64 and the case-law cited). In that regard, it is not sufficient to refer to certain facts in support of claims; there must also be adduced evidence of a sufficiently specific, objective and consistent nature to support their truth or, at the very least, their probability (judgments of 5 July 2000, Samper v Parliament, T‑111/99, EU:T:2000:179, paragraph 64; of 19 September 2001, E v Commission, T‑152/00, EU:T:2001:232, paragraph 68; and of 26 November 2002, Cwik v Commission, T‑103/01, EU:T:2002:284, paragraphs 28 and 29).
111 So far as the claim of misuse of powers by the legislature is concerned, it is sufficient to observe that the applicants do not state the improper goal alleged to be pursued by the legislature and thus they have not substantiated their claim.
112 So far as the claim of misuse of powers by the AECE is concerned, it is also sufficient to observe that the applicants have provided no objective, relevant and consistent evidence such as to prove that, by adopting the contested decisions, the AECE used its powers to achieve a goal other than that for which those powers were conferred upon it. The AECE adopted the contested decisions by applying the new Article 6 of Annex X to the Staff Regulations to fix the applicants’ days of leave.
113 Moreover, the applicants have not stated what goal, in their opinion, is pursued by the AECE.
114 Having regard to the foregoing, the fifth plea must be rejected.
115 It follows from all the foregoing that the action must be dismissed in its entirety.
Costs
116 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.
117 Under Article 138(1) of the Rules of Procedure, the Member States and the institutions which have intervened in the proceedings must bear their own costs.
118 Since the applicants have been unsuccessful in the present case, it must be held that they are to bear their own costs and to pay those incurred by the Commission, in accordance with the form of order sought by that institution. In addition, as an intervening institution, the Council must bear its own costs.
On those grounds,
THE GENERAL COURT (Fourth Chamber, Extended Composition)
hereby:
1. Dismisses the action;
2. Orders Mr Andrea Janoha and the other members of the contract staff of the European Commission whose names are set out in the annex, in addition to bearing their own costs, to pay those incurred by the Commission;
3. Declares that the Council of the European Union is to bear its own costs.
Kanninen | Schwarcz | Iliopoulos |
Calvo-Sotelo Ibáñez-Martín | | Reine |
Delivered in open court in Luxembourg on 4 December 2018.