JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (Third Chamber)

15 December 2010

Case F-67/09

Nicolás Angulo Sánchez

v

Council of the European Union

(Civil service — Special leave — Serious illness of a parent — Method of calculating the number of days of leave where several parents seriously ill)

Application: brought under Articles 236 EC and 152 EA, in which Mr Angulo Sánchez seeks annulment of the Council’s decisions of 8 October 2008 and 8 December 2008 refusing special leave because of the serious illness of a parent.

Held: The decisions of the Council of 8 October 2008 and 8 December 2008 refusing the applications for special leave made by the applicant are annulled. The Council is ordered to pay all the costs.

Summary

1.      Officials — Leave — Special leave

(Staff Regulations, Annex V, Art. 6)

2.      Officials — Leave — Special leave for serious illness of a parent

(Staff Regulations, Annex V, Art. 6)

3.      Officials — Actions — Prior administrative complaint — Rejection decision — Substitution of grounds for the disputed measure

(Staff Regulations, Arts 90 and 91)

4.      Officials — Actions — Pleas in law — Invalid plea in law — Plea based on the unlawfulness of the sole ground given in the contested decision — Decision capable of being legally justified by another ground

1.      In addition to the serious illness of a relative in the ascending line, Article 6 of Annex V to the Staff Regulations provides for various other situations in which an official may be granted special leave; these cover a wide range of events. Some of those events may involve a number of the official’s children or relatives in the ascending line within the same calendar year. As regards, in particular, the birth or death of a child, or the death of a relative in the ascending line, it would be inconceivable to consider, in the light of the exceptional nature of those events, that the maximum number of days laid down in Article 6 of Annex V to the Staff Regulations applied to all births or all deaths of children or relatives in the ascending line occurring during the calendar year. For those cases, the special leave entitlement is bound to apply for each birth of a child or each death of a child or parent. Since Article 6 of Annex V to the Staff Regulations does not indicate any differences in treatment for the events listed, it must be inferred that the legislature intended all those events to be treated similarly, and therefore that where a relative in the ascending line has a serious illness, the official may take two days’ leave per parent per year.

(see paras 38-42, 45)

2.      Where an institution adopts an internal directive which, referring to the fifth indent of Article 6 of Annex V to the Staff Regulations, makes it possible for an official to obtain renewal of his special leave for the serious illness of a relative in the ascending line, that possibility being subject to further conditions relating, first, to the need for the family situation to be very unusual and, second, to the fact that the parent in question must suffer from a chronic illness, that creates a broader entitlement to special leave which is more than just the special leave for the serious illness of a parent provided for in Article 6 of Annex V to the Staff Regulations.

Such a directive, which is intended to apply only in more problematical situations than those referred to in the fifth indent of Article 6 of Annex V to the Staff Regulations, is consequently not contrary to the provisions of that article .

(see paras 48-49)

3.      Although, in the system of remedies provided for in Articles 90 and 91 of the Staff Regulations, the administration may find it necessary, when it expressly rejects a complaint, to alter the grounds on the basis of which it had adopted the contested measure, such an alteration may not be made where the express decision rejecting the complaint is adopted after an action has been initiated against the contested measure before the Civil Service Tribunal.

The total absence of a statement of reasons for a decision cannot be remedied by explanations provided by the administration after an action has been started, since allowing the administration the possibility of rectifying the total absence of a statement of reasons after an action has been started might infringe the principle of the equality of the parties before the court, since the applicant would only have the reply in which to submit his pleas contesting the reasons, of which he would not be apprised until after he had lodged his application . By analogy and for the same reasons, where the administration does not merely supplement an existing ground, but seeks to base the contested measure on a new ground, it must do so before the action is started.

(see paras 70-71)

See:

T-52/90 Volger v Parliament [1992] ECR II‑121, para. 41

T-377/08 P Commission v Birkhoff [2009] ECR-SC I‑B‑1‑133 and II‑B‑1‑807, paras 55 to 60; T-560/08 P Commission v Meierhofer [2010] ECR II‑1739, para. 59

4.      The fact that a decision, based on a single ground which has been declared unlawful by the European Union judicature, might be legally justified by a different ground can prevent the annulment of that decision only in so far as the administration would have no discretion and would inevitably take a fresh decision essentially the same as the annulled decision.

In that respect, a defendant institution may not, in order to claim that an official has no legitimate interest in obtaining the annulment of the administration’s refusal to agree to his applications for special leave for the serious illness of a parent, rely on the absence of a condition for granting that leave laid down in an internal directive of the institution, namely the absence of a ‘very unusual family situation’, since the administration enjoys a very wide discretion in that regard, as the wording of the condition itself shows.

(see paras 75, 76, 78)