JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (Third Chamber)

15 December 2010

Case F-66/09

Roberta Saracco

v

European Central Bank

(Civil service — ECB staff — Leave on personal grounds — Maximum duration — Refusal to extend)

Application: brought under Article 36.2 of the Protocol on the Statute of the European System of Central Banks and of the European Central Bank, annexed to the EC Treaty, in which Ms Saracco essentially seeks annulment of the ECB’s decision of 14 October 2008 refusing to extend to 31 October 2009 the period of leave on personal grounds which she was then taking.

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

Summary

1.      Officials — Staff of the European Central Bank — Actions — Subject-matter

(Conditions of Employment for Staff of the European Central Bank, Art. 42)

2.      Officials — Staff of the European Central Bank — Leave on personal grounds — Maximum duration

(Rules of Procedure of the European Central Bank, Art. 11.2; Conditions of Employment for Staff of the European Central Bank, Art. 30; Staff Rules of the European Central Bank)

3.      Acts of the institutions — Temporal application

4.      Officials — Staff of the European Central Bank — General conditions concerning mobility — Scope — Staff on leave on personal grounds — Included

(Conditions of Employment for Staff of the European Central Bank, Art. 30; Staff Rules of the European Central Bank, Art. 5.12)

5.      Officials — Staff of the European Central Bank — Leave on personal grounds — Maximum duration — Assessment — Taking into account of the period before the general conditions concerning mobility came into force — Lawfulness

6.      Officials — Administration’s duty to have regard for the interests of officials  — Scope — Fulfilment by the European Central Bank

1.      The European Union courts may not make statements of law in the context of a review of legality based on Article 42 of the Conditions of Employment for Staff of the European Central Bank.

(see para. 39)

2.      According to Article 11.2 of the Rules of Procedure of the European Central Bank, the Executive Board may enact organisational rules which are binding on the staff, including in the field of industrial relations between the Bank and its staff.

Furthermore, there are no provisions of the Conditions of Employment for Staff or of the Bank’s Staff Rules which prevent limits from being placed on the duration of the leave on personal grounds provided for in Article 30 of those Conditions of Employment. Consequently, the Bank’s Executive Board may lawfully lay down a rule limiting the duration of unpaid leave to a maximum of three years where the leave is granted to a member of staff wishing to work for another organisation, even if such a rule may have the effect of limiting the duration of leave on personal grounds taken by staff on the basis of Article 30 of the Conditions of Employment.

(see paras 62, 65, 66, 82)

3.      Substantive rules must be interpreted as applying to situations existing before their entry into force only in so far as it follows clearly from their terms, objectives or general scheme that such effect must be ascribed to them.

However, new rules, particularly where they are substantive rules, apply immediately in principle, including to the future effects of a situation which arose before they came into force.

In the case of a measure laying down the maximum duration of unpaid leave, because new rules have immediate effect and in the absence of any mention of a date before which periods of leave must not be taken into account, the provisions of the measure apply immediately, including to the future effects of situations which arose before they came into force. That applies to periods of unpaid leave taken before the entry into force of those provisions.

(see paras 75-77)

See:

C-162/00 Pokrzeptowicz-Meyer [2002] ECR I‑1049, paras 49 and 50

4.      The general conditions concerning mobility in the European Central Bank determine the legal rules applicable to members of the Bank’s staff who are ‘externally mobile’. They make it clear that external mobility covers, in particular, those who have been granted unpaid leave to enable them to work for other organisations.

However, the fact that that unpaid leave comes under Article 30 of the Conditions of Employment for Staff of the Bank, as well as Article 5.12 of the Bank’s Staff Rules, and therefore constitutes leave on personal grounds, does not in itself have the effect of excluding the person granted that leave from the scope of the general conditions concerning mobility in the Bank.

(see paras 79, 81)

5.      The taking into account by the European Central Bank of a period of leave on personal grounds granted to one of its staff members before the general conditions concerning mobility in the Bank came into force, in order to assess whether the maximum duration applicable to unpaid leave on personal grounds had been attained, does not call into question a constituted situation or acquired right in so far as: first, the person concerned was able to take the full period of leave on personal grounds that he had been granted; second, those general conditions do not introduce a right for staff members to be granted, from their entry into force, three years’ unpaid leave, but merely lay down the maximum duration of that leave, which, in the absence of further information on this point in the text, must be regarded as not applying solely to applications for unpaid leave made after those general conditions came into force; third, the person concerned did not have, before the general conditions came into force, under any provision or decision of the administration, a right to be granted more than three years’ unpaid leave; fourth, there is no evidence or even allegation that an acquired right apart from the right to leave is being called into question.

(see paras 89-91, 93, 95)

6.      The administration’s duty to have regard to the welfare of its staff reflects the balance of reciprocal rights and obligations established by the Staff Regulations in the relationship between the official authority and its staff. That balance implies that when the administration takes a decision concerning the situation of an official, it must take into consideration all the factors which may affect its decision, and when doing so it should take into account not only the interests of the service but also those of the official concerned.

The duty to have regard to the welfare of staff, which must be taken into account by the institutions when they adopt a measure adversely affecting one of their officials, is also binding on the European Central Bank when it adopts such a measure in respect of one of its staff members.

(see paras 106-107)

See:

33/79 and 75/79 Kuhner v Commission [1980] ECR 1677, para. 22; C-298/93 P Klinke v Court of Justice [1994] ECR I‑3009, para. 38