ORDER OF THE PRESIDENT OF THE CIVIL SERVICE TRIBUNAL

15 December 2010

Joined Cases F-95/10 R and F-105/10 R

Eberhard Bömcke

v

European Investment Bank (EIB)

(Civil service — Staff of the European Investment Bank — Procedure for interim relief — Staff representatives — Compulsory resignation — Prima facie case — None)

Applications: brought, first, under Article 41 of the Staff Regulations of the EIB and, second, under Articles 278 TFEU and 157 EA, as well as Article 279 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr Bömcke seeks, first, suspension of the EIB’s decision of 22 September 2010 stating that his mandate as staff representative had expired because of his absence for more than four consecutive months, second, suspension of the EIB’s decision of 12 October 2010 confirming that his mandate as staff representative had expired, as well as suspension of the Staff Committee by-election to fill his mandate, now vacant, to be held from 1 to 8 December 2010.

Held: The applications for interim relief in Joined Cases F‑95/10 R and F‑105/10 R are dismissed. The costs are reserved.

Summary

1.      Application for interim measures — Suspension of operation of a measure — Interim measures — Conditions for granting — ‘Fumus boni juris’ — Urgency — Cumulative nature — Balancing of all the interests involved — Order and method of examination — Discretion of the judge dealing with the application for interim relief

(Arts 278 TFEU and 279 TFEU; Rules of Procedure of the Civil Service Tribunal, Art. 102(2))

2.      Officials — Sick leave — Early return to work — Whether permitted

1.      In an application for interim measures, the conditions relating to urgency and the establishment of a prima facie case for the interim measures applied for are cumulative, so that an application for interim measures must be dismissed if either of them is not fulfilled. Where appropriate, the judge hearing such an application must also weigh up the interests involved.

In the context of that overall examination, the judge hearing the application has a wide discretion and is free to determine, having regard to the specific circumstances of the case, the manner and order in which those various conditions are to be examined, there being no rule of law imposing a pre-established scheme of analysis within which the need to order interim measures must be assessed.

(see paras 45-46)

See:

T-173/99 R Elkaïm and Mazuel v Commission [1999] ECR-SC I‑A‑155 and II‑811, para. 18; T-120/01 R De Nicola v EIB [2001] ECR-SC I‑A‑171 and II‑783, paras 12 and 13

F‑38/06 R Bianchi v ETF [2006] ECR-SC I‑A‑1‑27 and II‑A‑1‑93, paras 20 and 22

2.      It is not prohibited for a staff member on sick leave to return to work before the scheduled end of the period of incapacity stated in the medical certificate attesting to that incapacity, if the staff member in question considers that he is once again capable of performing his duties. Thus, while the production of a medical certificate creates a presumption that a staff member is and remains on sick leave throughout the period covered by that certificate, that presumption is not irrebuttable, and it is still possible for the staff member in question to prove that he returned to work before the end of the period of incapacity stated in the certificate in question.

However, the interest of the service demands that the administrative situation of members of staff must be unambiguous. Since the staff member’s early return to work constitutes a new event for the employer, the proper organisation of the service may require the employer to make arrangements concerning work organisation.

In the light of the interest of the service and the resulting need for staff to have a clear administrative position, therefore, it does not appear unreasonable that, where a staff member claims to have returned to work before the end of the period of incapacity stated in the medical certificate which he produced, the employer should refuse to call into question the probative force of that certificate, if it is not unequivocally evident from the conduct of the staff member in question that he returned to work early.

It cannot automatically be inferred from the mere fact that a staff member is in his office from time to time that he is back at work and not on sick leave, as attested by the medical certificate he produced.

An institution may therefore legitimately rely on the need for clarity in a staff member’s administrative position in order to require, where necessary, that a staff member wishing to return to work early should expressly inform his employer that that is the case. The institution may also legitimately rely on that need for clarity in order to require that, should the staff member become unfit for work again after returning to work early, he should provide his employer with a fresh medical certificate to justify his absence.

(see paras 54-58)