JUDGMENT OF THE GENERAL COURT (Appeal Chamber)

8 November 2012

Case T‑268/11 P

European Commission

v

Guido Strack

(Appeal — Civil service — Officials — Leave — Sick leave — Annulment at first instance of the Commission’s decision refusing to carry over days of annual leave not taken by the person concerned — Article 4 of Annex V to the Staff Regulations — Article 1e(2) of the Staff Regulations — Directive 2003/88/EC — Appeal well founded — Whether the state of the proceedings permits final judgment to be given — Dismissal of the action)

Appeal:      against the judgment of the European Union Civil Service Tribunal (Second Chamber) of 15 March 2011 in Case F‑120/07 Strack v Commission [2011] ECR-SC, seeking to have that judgment set aside in part.

Held:      The judgment of the European Union Civil Service Tribunal of 15 March 2011 in Case F‑120/07 Strack v Commission is set aside. The action brought by Mr Guido Strack before the European Union Civil Service Tribunal in Case F‑120/07 is dismissed. Mr Strack and the European Commission are to bear their own costs, both of the proceedings before the Civil Service Tribunal and of the present proceedings.

Summary

1.      Actions for annulment — Pleas in law — Plea adopted by the court of its own motion — Plea relating to the substantive legality of the contested act — Plea alleging infringement of a legal rule relating to the application of the Treaty — Not included

(Art. 263 TFEU)

2.      Acts of the institutions — Directives — Direct imposition of obligations on the Community institutions in their relations with their staff — Not included — Possibility of relying on certain provisions — Scope

(Art. 288 TFEU; Directive 2003/88 of the European Parliament and of the Council)

3.      Social policy — Protection of the safety and health of workers — Organisation of working time — Right to paid annual leave — Principle of EU social law of particular importance

(Charter of Fundamental Rights of the European Union, Art. 31(2); Directive 2003/88 of the European Parliament and of the Council, Art. 7(1))

4.      Officials — Leave — Annual leave — Carrying over to the following year of all days of leave not taken — Conditions — Compatibility of Article 4 of Annex V to the Staff Regulations with Article 7(1) of Directive 2003/88 concerning certain aspects of the organisation of working time — Denial of the right to paid annual leave — None

(Staff Regulations, Annex V, Art. 4, first para.; Directive 2003/88 of the European Parliament and of the Council, Art. 7(1))

5.      Officials — Protection of health and safety — Article 1e(2) of the Staff Regulations — Interpretation — Interpretation in accordance with Article 7 of Directive 2003/88 concerning certain aspects of the organisation of working time — None — Different purpose

(Art. 336 TFEU; Staff Regulations, Art. 1e(2); Annex V, Art. 4, first para.; Directive 2003/88 of the European Parliament and of the Council, Art. 7(1))

6.      Union law — Interpretation — Texts in several languages — Uniform interpretation — Consideration of different language versions

7.      Officials — Leave — Annual leave — Final termination of service — Financial compensation for unused leave — Conditions for granting — Leave not taken because of the requirements of the service — Requirements of the service — Concept — Absence from service because of sick leave — Not included

(Staff Regulations, Art. 59; Annex V, Art. 4, first and second paras)

8.      Actions brought by officials — Action for damages — Pre-litigation procedure — Different depending on whether there is an act having adverse effect

1.      See the text of the decision.

(see para. 24)

See:

C‑367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, para. 67; C‑89/08 P Commission v Ireland and Others [2009] ECR I‑11245, para. 40

T‑100/08 P Kerelov v Commission [2010] ECR-SC, para. 13

2.      Directives are addressed to the Member States and not to the Union institutions. Consequently, the provisions of Directive 2003/88 concerning certain aspects of the organisation of working time cannot be treated, as such, as imposing any obligations on the institutions in their relations with their staff. It follows that the provisions of that directive cannot, as such, be the source of obligations for the Commission in the exercise of its decision-making powers for the management of relations with its staff, nor can they form the basis for a plea of illegality against the Staff Regulations.

However, the fact that a directive is not binding, as such, on the institutions and that it cannot form the basis for a plea of illegality against a provision of the Staff Regulations cannot preclude the rules or principles laid down in that directive from being relied on against the institutions where those rules or principles appear to be merely the specific expression of fundamental rules of the Treaty and of general principles which directly apply to the institutions.

Likewise, a directive may be binding on an institution where the latter, within the scope of its organisational autonomy and within the limits of the Staff Regulations, has sought to carry out a specific obligation laid down by a directive or in the specific instance where an internal measure of general application itself expressly refers to measures laid down by the Union legislature pursuant to the Treaties.

Lastly, the institutions must, in accordance with their duty to act in good faith, take account, in their actions as employer, of the legislation adopted at EU level imposing, in particular, minimum requirements designed to improve the living and working conditions of workers in the Member States by harmonising national laws and practices.

(see paras 40-44)

See:

C‑25/02 Rinke [2003] ECR I‑8349, paras 25 to 28

T‑325/09 P Adjemian and Others v Commission [2011] ECR II‑6515, paras 51 and 52 and the case-law cited therein

F‑65/07 Aayhan and Others v Parliament [2009] ECR-SC I‑A‑1‑1054 and II‑A‑1-567, paras 113, 116, 118 and 119; F‑134/07 and F‑8/08 Adjemian and Others v Commission [2009] ECR-SC I‑A‑1‑149 and II‑A‑1-841, para. 86

3.      See the text of the decision.

(see paras 46-48)

See:

C‑214/10 KHS [2011] ECR I‑11757, para. 37; C‑282/10 Dominguez [2012] ECR, para. 16 and the case-law cited therein; C‑337/10 Neidel [2012] ECR, para. 40; C‑78/11 ANGED [2012] ECR, paras 17 and 18 and the case‑law cited therein

4.      Even if the right to annual leave may be regarded as a general principle of law which is directly applicable to the institutions in their relations with their staff and in the light of which the lawfulness of one of their measures may be assessed, Article 4 of Annex V to the Staff Regulations cannot, in any event, be regarded as denying officials the exercise of that right.

That article merely lays down the rules on carrying over or compensation for days of annual leave not taken, allowing 12 days of unused annual leave to be automatically carried over to the following year and providing for the possibility of carrying over days in excess of that limit where the annual leave has not been used up for reasons attributable to the requirements of the service. Article 4 of Annex V to the Staff Regulations cannot therefore be regarded as making the grant or exercise of the right to annual leave subject to a condition which renders it meaningless, or as incompatible with the scheme and purpose of Article 7(1) of Directive 2003/88 concerning certain aspects of the organisation of working time. Moreover, the requirement that the carrying over of or compensation for unused annual leave must be subject to certain conditions appears justified both by the need to prevent the unlimited accumulation of unused leave and in order to protect the Union’s financial interests.

Similarly, it cannot be claimed that the institutions failed to take account, in drawing up the relevant rules of the Staff Regulations, of provisions adopted at EU level, such as the minimum requirements laid down in Article 7 of Directive 2003/88 which apply to the Member States, since it is not at all evident from the wording of Article 4 of Annex V to the Staff Regulations that it does not comply with those requirements.

(see paras 49-51)

5.      On a reading of Article 1e(2) of the Staff Regulations, that article cannot be regarded as reflecting the institutions’ intention to implement, through its inclusion in the Staff Regulations, a particular obligation laid down in Directive 2003/88 concerning certain aspects of the organisation of working time, nor can the reference in that article to the minimum requirements applicable under measures adopted in the areas of health and safety pursuant to the Treaties be regarded as referring to Article 7(1) of that Directive, since the purpose of the Directive is different from that of Article 1e of the Staff Regulations.

Article 1e of the Staff Regulations, which is one of the general provisions of Title I of the Staff Regulations, refers to the compliance of the working conditions of officials in active employment with ‘appropriate health and safety standards’, which appears to mean the minimum technical standards for protecting the health and safety of workers at the workplace, which are not governed by the other provisions of the Staff Regulations, rather than minimum health and safety requirements generally, which include those relating to the organisation of working time covered by Directive 2003/88 and, in particular, annual leave. Such a broad interpretation of Article 1e(2) of the Staff Regulations would be contrary to the independence enjoyed by the EU legislature as regards its civil service, enshrined in Article 336 TFEU.

Moreover, the Staff Regulations contain specific provisions on the organisation of working time and leave, in Title IV and Annex V. The rules on carrying over days of unused annual leave to the following year, or payment of compensation for such days, are specifically governed by Article 4 of Annex V to the Staff Regulations. Since that provision sets out a clear and precise rule limiting the right to carry over or be paid compensation for annual leave in relation to the number of days’ leave not taken, use cannot be made of the provisions of Directive 2003/88 by relying on another provision of the Staff Regulations, such as Article 1e, as a rule of general application, allowing an exception to be made to the specific provisions of the Staff Regulations on the subject. That would result in an interpretation contra legem of the Staff Regulations.

(see paras 52-54)

6.      See the text of the decision.

(see para. 58)

See:

T‑62/10 P Zangerl-Posselt v Commission [2011] ECR-SC, para. 42 and the case-law cited therein

7.      It follows from the first paragraph of Article 4 of Annex V to the Staff Regulations that it is only if an official has not been able to use up his annual leave during the current calendar year for reasons attributable to the requirements of the service that the amount of unused leave carried over may exceed 12 days. Similarly, the second paragraph of Article 4 of Annex V to the Staff Regulations grants an official who has left the service the compensation provided for in that paragraph only for days of annual leave which have not been taken because of the requirements of the service.

The term ‘requirements of the service’ used in the first paragraph of Article 4 of Annex V to the Staff Regulations must be interpreted as referring to professional activities preventing the official, as a result of his duties, from taking the annual leave to which he is entitled. It is clear from the provisions of the first paragraph of Article 59(1) of the Staff Regulations that an official will be entitled to sick leave only if he ‘provides evidence of incapacity to perform his duties’. It follows that, where an official is entitled to sick leave, he is, by definition, excused from performing his duties and is therefore not in service for the purposes of the first paragraph of Article 4 of Annex V to the Staff Regulations.

The requirements of the service referred to in Article 4 of Annex V to the Staff Regulations correspond to reasons capable of preventing an official from taking leave because he must remain on duty in order to perform the tasks required by the institution for which he works. Those requirements may be occasional or continual, but must necessarily be related to an activity in the service of the institution. Sick leave, on the other hand, provides an official with a valid reason for being absent. In view of his state of health he is no longer required to work for the institution. Consequently, the concept of ‘requirements of the service’ may not be interpreted as covering absence from service justified by sick leave, even in the case of protracted illness. An official on sick leave may not be deemed to be working in the service of the institution precisely because he is excused from it.

It follows that the right to carry over annual leave in excess of the limit of twelve days must necessarily stem from an obstacle relating to the official’s activity and resulting from the performance of his duties, and may not be granted for an illness which prevented him from performing those duties, even if it has been proved that the illness was occupational in origin.

(see paras 64-67)

See:

T‑80/04 Castets v Commission [2005] ECR-SC I‑A‑161 and II‑729, paras 28, 29 and 33; T‑368/04 Verheyden v Commission [2007] ECR-SC I‑A‑2‑93 and II‑A‑2‑665, paras 61 to 63 and the case-law cited therein

8.      See the text of the decision.

(see paras 70, 72)

See:

T‑416/03 Angelidis v Parliament [2006] ECR-SC I‑A‑2-317 and II‑A‑2-1607, para. 127 and the case-law cited therein

F‑23/05 Giraudy v Commission [2007] ECR-SC I‑A‑1-121 and II‑A‑1-657, para. 69 and the case-law cited therein