# C_2011232EN.01003101.xml

| 6.8.2011 | EN | Official Journal of the European Union | C 232/31 |
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6.8.2011

EN

Official Journal of the European Union

C 232/31

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Appeal brought on 26 May 2011 by the European Commission against the judgment of the Civil Service Tribunal of 15 March 2011 in Case F-120/07 Strack v Commission

(Case T-268/11 P)

(2011/C 232/56)

Language of the case: German

Parties

Appellant: European Commission (represented by: J. Curral and B. Eggers, Agents

Other party to the proceedings: Guido Strack (Cologne, Germany)

Form of order sought by the appellant

The appellant claims that the General Court should:

| — | set aside the judgment of the Civil Service Tribunal of 15 March 2011 in Case F-120/07 Strack v Commission; |
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set aside the judgment of the Civil Service Tribunal of 15 March 2011 in Case F-120/07 Strack v Commission;

| — | order both parties to bear their own costs of the proceedings at first instance and of this appeal. |
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order both parties to bear their own costs of the proceedings at first instance and of this appeal.

Pleas in law and main arguments

In support of the appeal, the appellant relies essentially on three grounds of appeal.

| 1. | First ground of appeal: infringement of European Union law in the interpretation of Article 4 of Annex V to the Staff Regulations of officials of the European Union (the Staff Regulations):
  First, the Civil Service Tribunal infringed European Union law and settled case-law by interpreting the first paragraph of Article 4 of Annex V to the Staff Regulations to mean that it did not apply to the carrying over of the right to leave in cases of long term illness. |
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1.

First ground of appeal: infringement of European Union law in the interpretation of Article 4 of Annex V to the Staff Regulations of officials of the European Union (the Staff Regulations):

First, the Civil Service Tribunal infringed European Union law and settled case-law by interpreting the first paragraph of Article 4 of Annex V to the Staff Regulations to mean that it did not apply to the carrying over of the right to leave in cases of long term illness.

| 2. | Second ground of appeal: Infringement of European Union law in the legally erroneous determination of the scope and legal effect of the second paragraph of Article 1(e) of the Staff Regulations:
  Secondly, the Tribunal infringed European Union law and failed to state sufficient reasons in its erroneous interpretation of the scope of the second paragraph of Article 1(e) of the Staff Regulations as imposing a comprehensive duty on the institutions to guarantee as a minimum to officials, with reference to all working conditions relating to health protection, the standards in Directives adopted pursuant to Article 153 TFEU. The objective however of the second paragraph of Article 1(e), which was introduced as part of the 2004 reform of the Staff Regulations, is merely to remedy a lacuna in respect of technical provisions lacking in the Staff Regulations for the safeguarding of the health and safety of the staff in the premises of the institutions (for example. fire protection, hazardous substances, ventilation, ergonomics, etc.). The Staff Regulations accordingly now allow the application of the technical minimum standards in the respective Directives transposed into national law. However, the provision cannot and should not affect working conditions in respect of carrying over leave and compensation for unused leave which are determined exclusively by the bodies enacting the Staff Regulations. In so far as the Tribunal so decided, the decision was contrary not only to the current provisions of the Staff Regulations and the Tribunals’ case-law, but also was in breach of the principle of legal certainty. |
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2.

Second ground of appeal: Infringement of European Union law in the legally erroneous determination of the scope and legal effect of the second paragraph of Article 1(e) of the Staff Regulations:

Secondly, the Tribunal infringed European Union law and failed to state sufficient reasons in its erroneous interpretation of the scope of the second paragraph of Article 1(e) of the Staff Regulations as imposing a comprehensive duty on the institutions to guarantee as a minimum to officials, with reference to all working conditions relating to health protection, the standards in Directives adopted pursuant to Article 153 TFEU. The objective however of the second paragraph of Article 1(e), which was introduced as part of the 2004 reform of the Staff Regulations, is merely to remedy a lacuna in respect of technical provisions lacking in the Staff Regulations for the safeguarding of the health and safety of the staff in the premises of the institutions (for example. fire protection, hazardous substances, ventilation, ergonomics, etc.). The Staff Regulations accordingly now allow the application of the technical minimum standards in the respective Directives transposed into national law. However, the provision cannot and should not affect working conditions in respect of carrying over leave and compensation for unused leave which are determined exclusively by the bodies enacting the Staff Regulations. In so far as the Tribunal so decided, the decision was contrary not only to the current provisions of the Staff Regulations and the Tribunals’ case-law, but also was in breach of the principle of legal certainty.

| 3. | Third ground of appeal: Procedural infringement:
  Third, the Tribunal infringed procedural requirements, since of its own motion it interpreted the applicant’s first claim as an infringement of the second paragraph of Article 1(e) of the Staff Regulations and de facto nullified a provision of the Staff Regulations when there was no plea of illegality and the Council and the Parliament of the European Union had no opportunity to intervene. |
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3.

Third ground of appeal: Procedural infringement:

Third, the Tribunal infringed procedural requirements, since of its own motion it interpreted the applicant’s first claim as an infringement of the second paragraph of Article 1(e) of the Staff Regulations and de facto nullified a provision of the Staff Regulations when there was no plea of illegality and the Council and the Parliament of the European Union had no opportunity to intervene.

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