JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(First Chamber)

7 July 2009

Case F-39/08

Giorgio Lebedef

v

Commission of the European Communities

(Civil service – Officials – Annual leave – Staff representation activities – Secondment on half time for union representation purposes – Activities in connection with representation as provided for in the Staff Regulations – Unauthorised absence – Deduction from annual leave entitlement – Article 60 of the Staff Regulations)

Application: brought under Articles 236 EC and 152 EA, in which Mr Lebedef seeks annulment of the decisions of 29 May, 20 June, 28 June and 6 July 2007 and also of the two decisions of 26 July 2007 and the decision of 2 August 2007, all of which concern in total a deduction of 32 days from his 2007 leave entitlement.

Held: The action is dismissed. The applicant is ordered to pay all the costs.

Summary

1.      Officials – Representation – Staff Committee – Participation of officials or other servants not on secondment

2.      Officials – Unauthorised absence – Ex post facto regularisation – Conditions

(Staff Regulations, Art. 60)

3.      Officials – Representation – Staff Committee – Obligation to obtain prior permission for absence

(Staff Regulations, Art. 60)

4.      Officials – Absence – Competence to monitor

1.      It is neither possible nor desirable that staff representation should be provided solely by officials or other servants on secondment, whether for 50% or 100% of their working time. There is a positive interest in persons not on secondment assuming a part of the staff representation duties. However, the system which specifically provides for the grant of secondment to certain staff representatives implies that, in the case of officials or servants not on secondment, participation in staff representation activities should be occasional and, calculated on a six‑monthly or quarterly basis, cover a relatively limited percentage of working time.

While the precise delimitation of the ‘occasional’ nature of participation in staff representation and the precise delimitation of the percentage of time devoted to staff representation are by nature impossible and can be undertaken only on a case-by-case basis, to accept that an official or other servant not on secondment should devote virtually all, or indeed all, his working time to staff representation, and thus devote little, or indeed no, working time to the service to which he is assigned, would have the effect of distorting the system put in place by the various agreements concluded between the Commission and the trade unions and staff associations and, depending on the circumstances of the case, might be liable to constitute an abuse of right, which the Community judicature may be induced to penalise.

(see paras 49-50)

See:

T-222/95 Angelini v Commission [1997] ECR-SC I‑A‑491 and II‑1277, paras 35 and 36; T-57/96 Costantini v Commission [1997] ECR-SC I‑A‑495 and II‑1293, paras 28 and 29; T-95/98 DEP Gogos v Commission [2001] ECR-SC I‑A‑123 and II‑571, para. 24

2.      Where an official has not sought prior permission for his absence or, at the very least, provided information in advance that he would be absent, an ex post facto confirmation validating his absence can apply only in the event of sickness or accident, under Article 60 of the Staff Regulations; in any event, even where such ex post facto confirmation is given, the competent administration must be able to retain a certain right of control and to assess the merits of an ex post facto regularisation of the absence deemed irregular.

(see para. 55)

3.      While in certain circumstances practical difficulties or constraints imposed by confidentiality may prevent staff representatives from complying with the obligation to obtain prior permission from their immediate superior (or, at the very least, the obligation to inform their immediate superior in advance), as regards, in particular, the question of confidentiality, and apart from the fact that much information relating to staff representation activities is not confidential, notably the place and time of official meetings, and the details of those participating in them, and that the obligation to maintain confidentiality thus relates to only a part of those activities, it is always possible for a staff representative, even where such confidential data are present, to provide his immediate superior with general, non-confidential information, such as the approximate duration of a meeting.

Furthermore, a general and vague awareness of the official’s staff representation activities by the service to which he is assigned cannot count as prior information or, a fortiori, prior permission from the official’s immediate superior.

(see paras 57-58)

4.      As regards an official belonging to two hierarchical structures, the first being that of the staff representation concerning his activities as a union representative and the second being that of the service to which he is assigned, while the staff representation is competent to monitor his absences in the context of his secondment for union purposes, the same does not apply with respect to his absences in relation to the time which he is required to devote to the service to which he is assigned, for which only that service is competent.

(see para. 59)