Opinion of the Advocate General — ECLI:EU:C:2021:459
Date: 2021-06-03
Language of the case: French
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Procedure: Staff cases;Appeal - successful

summary form, coherently and intelligibly in the application itself. Whilst the body of the application may certainly be supported and supplemented on specific points by references to extracts from documents annexed thereto, a general reference to other documents, even those annexed to the application, cannot make up for the absence of the essential arguments in law which, in accordance with the provisions referred to in the preceding paragraph of the present judgment, must appear in the application (judgment of 11 September 2014, MasterCard and Others v Commission, C‑382/12 P, EU:C:2014:2201, paragraph 40, and order of 21 January 2016, Internationaler Hilfsfonds v Commission, C‑103/15 P, not published, EU:C:2016:51, paragraph 32). 69 The purely probative and instrumental purposes of the annexes means that, in so far as these contain elements of law on which certain grounds expressed in the appeal are based, those elements must be set out in the actual body of that appeal or, at the very least, be sufficiently identified in the appeal (see judgment of 2 October 2019, Crédit mutuel Arkéa v ECB, C‑152/18 P and C‑153/18 P, EU:C:2019:810, paragraph 39 and the case-law cited). 70 Consequently, it is not for the General Court to seek and identify in the annexes the pleas and arguments on which it may consider the action to be based, since the annexes have a purely evidential and instrumental function (see, to that effect, judgment of 16 September 2020, BP v FRA, C‑669/19 P, not published, EU:C:2020:713, paragraph 54). 71 The second complaint of the second part of the single ground of appeal is, consequently, unfounded. 72 Therefore, the first and second parts of that ground of appeal must be dismissed as unfounded. The fifth part of the single ground of appeal – Arguments of the parties 73 By the fifth part of the single ground of appeal, which must be examined first, the appellant claims that the General Court misapplied Article 60 of the Staff Regulations and disregarded the legal basis for the contested decision. According to the appellant, by considering that that decision, based on Article 60 of the Staff Regulations, was valid, the General Court erred in law in its analysis of Article 60 and, in addition, distorted the facts by considering that the appellant’s absence was unauthorised even though she was physically present. 74 In the first place, the General Court is said to have analysed the so-called fact of the unjustified absences in the light not of Article 60 of the Staff Regulations, which constitutes the legal basis for the contested decision, but on the basis of Articles 21 and 55 of the Staff Regulations. 75 By confirming the appointing authority’s analysis contained in the contested decision, treating the appellant’s presence in the buildings of the institution, which did not meet the latter’s expectations in terms of availability and attendance, as an unjustified absence, the General Court is said to have infringed Article 60 of the Staff Regulations, which covers absences without prior permission, except in case of sickness or accident. Since the appellant was present on those premises, she states that Article 60 of the Staff Regulations does not apply. 76 According to the appellant, if the appointing authority considered that she did not meet those expectations, it should have initiated disciplinary proceedings. An infringement of Articles 21 and 55 of the Staff Regulations cannot be penalised by a salary deduction or a deduction of leave since such measures are not provided for in Article 9 of Annex IX to the Staff Regulations. Thus, a salary deduction cannot constitute a disguised or alternative disciplinary sanction. 77 In the second place and in any event, the EEAS is said not to have provided a description of the post, or to have stated the objectives to be achieved and the specific tasks entrusted to the appellant, or proved that the appellant refused to perform them. In that regard, the General Court is said to have committed a manifest error of assessment by referring, in paragraph 74 of the order under appeal, to the appellant’s response to her appraisal report for 2016, whereas her alleged unjustified absences, as established by the General Court, related to 2017. 78 The EEAS submits that the fifth part of the single ground of appeal, in so far as it concerns an alleged infringement of Article 60 of the Staff Regulations, is not contained in the wording of the single ground of appeal. It states that, in any event, that part is unfounded. In that regard the General Court is said to have rightly noted that the official must at all times be at the disposal of the institution, that Article 60 of the Staff Regulations penalises any unauthorised absence and that it therefore requires an effective presence in the workplace, which is subject to the official’s compliance with two cumulative conditions, referred to in Articles 21 and 55 of the Staff Regulations, namely to assist his or her superiors by performing the tasks entrusted to him or her and, to that end, to make himself or herself available to the institution at all times. Consequently, contrary to what the appellant claims, the General Court and the appointing authority relied on Articles 21, 55 and 60 of the Staff Regulations, taken together, and not solely on Article 60 thereof. – Findings of the Court 79 As regards the alleged inadmissibility of the fifth part of the single ground of appeal, it should be noted that, first, although the wording of that ground of appeal contains an allegation relating to ‘manifest errors of assessment resulting in imprecise legal reasoning’ in the order under appeal, the arguments set out in that fifth part clearly state that, by it, the appellant is criticising the General Court for having erred in law in applying Article 60 of the Staff Regulations. 80 Second, that fifth part indicates precisely the contested elements of the order under appeal and the legal arguments specifically advanced in support of the request to have that order set aside, in accordance with the requirements set out in paragraph 44 of the present judgment. 81 The fifth part of the single ground of appeal is therefore admissible. 82 As regards the first complaint of the fifth part of the single ground of appeal, by which the appellant alleges that the General Court misapplied Article 60 of the Staff Regulations, it should be noted that, in paragraphs 70 to 80 of the order under appeal, the General Court verified whether the contested decision and the decision rejecting the complaint were consistent with Articles 21, 55 and 60 of the Staff Regulations. 83 After recalling, in paragraphs 71 and 72 of the order under appeal, the wording of those articles and that of point B of the introduction to Commission Decision C (2013) 9051 final of 16 December 2013 on leave, applicable to the EEAS by virtue of EEAS Decision DEC (2014) 009 of 13 February 2014, the General Court found, in paragraph 73 of that order, that the appellant had failed to comply with the requirements laid down by those provisions. 84 Thus, in paragraphs 74 and 75 of that order, the General Court first of all stated, with regard to the conditions laid down in Articles 21 and 55 of the Staff Regulations, that the appointing authority rightly held that it was apparent from the file, and in particular from the appellant’s response to her appraisal report for 2016, that, since her transfer within the PRISM Division and despite various warnings and reminders from her superiors, she had made clear her intention not to work within that division. 85 Next, the General Court noted, in paragraph 76 of the order under appeal, that the appellant’s desire not to assist her superiors and not to carry out the tasks entrusted to her was also apparent from an email from the appellant dated 11 April 2017 in which she stated that she had been present every day at the EEAS in order to attempt to resolve the situation in which she found herself following her unlawful exclusion from the EURCA.West.3 Division and her improper transfer to the PRISM Division. In her email, the appellant also stated that she was not necessarily sitting at her desk all day. 86 Lastly, the General Court added, in paragraph 77 of the order under appeal, that, even if the appellant considered that her transfer was not suitable, she could request another assignment, but that did not exempt her, pending such assignment, from working within the PRISM Division to carry out tasks related to her post and from making herself available to the EEAS at all times. In paragraph 78 of that order, the General Court stipulated that, if the appellant considered that her transfer was vitiated in some way, she could avail herself of the remedies available to her, but her fundamental duties of loyalty and cooperation prevented her, however, from refusing to comply with the obligations arising from that transfer. 87 The General Court concluded, in paragraph 79 of the order under appeal, that, even if it were established that the appellant was actually present in EEAS office buildings as claimed, the fact remains that, by clearly stating her intention not to work within the PRISM Division on the ground that she wanted to focus solely on the administrative issues related to her transfer, the appellant manifestly failed to comply with the conditions laid down by Articles 21 and 55 of the Staff Regulations. The General Court went on to state that the EEAS cannot therefore be criticised for considering the appellant to be in a situation of unjustified absences and that, since the absences invoked by the EEAS had not been authorised in advance by her superiors, the deduction from her pay of up to 72 calendar days was merely the consequence of non-compliance with the requirements provided for in Article 60 of the Staff Regulations. 88 Lastly, the General Court stated, in paragraph 80 of the order under appeal, that the conclusion it reached in paragraph 79 thereof cannot be called into question by the appellant’s claim that she had submitted numerous items of evidence attesting to her presence in the office and within the PRISM Division. In that regard, the General Court took the view, in essence, that that evidence did not make it possible, despite its date of dispatch, to demonstrate either that the appellant had assisted her superiors by performing the tasks entrusted to her or that she had made herself available to the EEAS at all times in accordance with her obligations under Articles 21 and 55 of the Staff Regulations. 89 It follows from the foregoing considerations that the General Court, in essence, took the view that, since, by having clearly stated her intention not to work within the division to which she had been transferred, the appellant had failed to comply with the conditions laid down by Articles 21 and 55 of the Staff Regulations, the EEAS cannot be criticised for considering her to be in a situation of unjustified absences and, consequently, in accordance with Article 60 of the Staff Regulations, the EEAS could legitimately make a deduction from her pay of up to 72 calendar days, even if it were established that the appellant was actually present in EEAS office buildings. 90 As a preliminary point, it must be observed that, although, in the order under appeal, the General Court refers to the appellant’s ‘unjustified absences’, it is clear from paragraph 70 of that order that the General Court examined whether the contested decision and the decision rejecting the complaint were consistent, inter alia, with Article 60 of the Staff Regulations, which refers to cases of ‘unauthorised absence’. 91 It is therefore necessary to determine whether the fact, were it to be established, that an official does not comply with the obligations imposed on him or her by Articles 21 and 55 of the Staff Regulations, namely to assist and tender advice to his or her superiors, to be responsible for the duties assigned to him or her and at all times to be at the disposal of the institution, may be classified as an ‘unauthorised absence’ within the meaning of the first paragraph of Article 60 of the Staff Regulations and, therefore, enable the measures laid down in that provision to be applied to that official. 92 In accordance with settled case-law, in interpreting a provision of EU law, it is necessary to consider not only its wording but also its context and the objectives pursued by the rules of which it forms part (see, inter alia, judgment of 28 January 2020, Commission v Italy (Directive combating late payment), C‑122/18, EU:C:2020:41, paragraph 39 and the case-law cited). 93 In the first place, it should be noted that the first paragraph of Article 60 of the Staff Regulations, which is in Chapter 2 of Title IV thereof, entitled ‘Leave’, provides that, ‘except in case of sickness or accident, an official may not be absent without prior permission from his immediate superior’, that, ‘without prejudice to any disciplinary measures that may apply, any unauthorised absence which is duly established shall be deducted from the annual leave of the official concerned’ and that, ‘if he has used up his annual leave, he shall forfeit his remuneration for an equivalent period’. 94 Although that provision does not define the concept of ‘unauthorised absence’, it follows that the absence of an official is unauthorised when the official has not complied with the prohibition on being absent without prior permission from his or her immediate superior, except in case of sickness or accident. 95 For the purposes of applying the first paragraph of Article 60 of the Staff Regulations, the duly established absence of the official concerned and the lack of prior permission from his or her superior to that effect are decisive. It follows from that provision that the principal reason for forfeiture of remuneration is the absence of an official without authorisation under the regulations or from the appointing authority (order of 30 November 1972, Perinciolo v Council, 75/72 R, EU:C:1972:110, paragraph 10). 96 As the Advocate General stated in point 44 of his Opinion, in everyday language, the concept of ‘absence’ refers to the fact that someone or something is not where it is expected to be, which implies a physical absence. 97 There is nothing in the wording of the first paragraph of Article 60 of the Staff Regulations to suggest that, for the purposes of applying that provision, that concept must be understood in a sense that is different from its ordinary meaning. In particular, there is nothing whatsoever in that wording to suggest that the ‘unauthorised absence’ of an official, within the meaning of that provision, may be inferred from a failure to comply with his or her professional obligations under Articles 21 and 55 of the Staff Regulations, irrespective of whether or not the official is physically present at his or her place of work. 98 As the Advocate General observed, in essence, in point 46 of his Opinion, the first paragraph of Article 60 of the Staff Regulations makes no reference to any failure on the part of the official to comply with his or her professional obligations. 99 In the second place, it should be recalled that Chapter 2 of Title IV of the Staff Regulations, entitled ‘Leave’, which includes Article 60 of the Staff Regulations, lays down provisions relating to the various forms of leave available to officials, namely annual leave and special leave, governed by Articles 57 and 59a of the Staff Regulations, maternity leave, governed by Article 58 of the Staff Regulations, and sick leave, governed by Article 59 of the Staff Regulations. As the Advocate General noted in point 54 of his Opinion, all of those articles concern situations in which an official has entered a period of occupational inactivity and, consequently, does not have to be physically present at his or her place of work. 100 While Articles 57 to 59a of the Staff Regulations concern situations in which the official’s absence is justified by reason of one of the types of leave governed by those articles, the first paragraph of Article 60 of the Staff Regulations covers situations in which the official is absent without falling under one of the situations covered by Articles 57 to 59a and without having obtained permission from his or her superior. 101 The fact that the first paragraph of Article 60 of the Staff Regulations falls within Chapter 2 of Title IV thereof tends to confirm that the applicability of that provision presupposes that the official concerned is physically absent from his or her place of work. 102 In the third place, an official who is in a situation of ‘unauthorised absence which is duly established’, within the meaning of the first paragraph of Article 60 of the Staff Regulations, is liable, without prejudice to any disciplinary measures that may apply, to having that unauthorised absence deducted from his or her annual leave or, if that leave has been used up, to forfeiting his or her remuneration for a period equivalent to that unauthorised absence. 103 In that regard, the Court has held that any unauthorised absence which is duly established on the part of an official who has used up his annual leave results in his automatically forfeiting his remuneration (judgment of 6 July 1983, Geist v Commission, 285/81, EU:C:1983:192, paragraph 21). 104 The forfeiture of remuneration, provided for in the first paragraph of Article 60 of the Staff Regulations, is neither a disciplinary measure nor an equivalent measure (judgment of 6 July 1983, Geist v Commission, 285/81, EU:C:1983:192, paragraph 21). 105 It follows that, first, the deduction of an unauthorised absence from annual leave or, if that leave has been used up, the forfeiture of remuneration for a period equivalent to that absence, provided for in the first paragraph of Article 60 of the Staff Regulations, are measures which, by reason of their nature and effect, are intended not to reprimand an official for his or her misconduct, incompetence or unavailability during the period of work, but to compensate for the physical absence of that official. In so far as the absence is calculated as a number of days or half days, those measures involve deducting the number of days or half days from the number of days’ leave remaining or, where appropriate, from the remuneration of the official concerned. 106 As the Advocate General observed in point 63 of his Opinion, unlike the situations in which an official is absent from his or her place of work, it is not possible to quantify a possible breach of professional obligations by that official. 107 Second, the measures referred to in paragraph 105 of the present judgment are not intended to replace a disciplinary penalty on account of such a breach. 108 Consequently, the objective of the measures provided for in the first paragraph of Article 60 of the Staff Regulations confirms the interpretation that that provision covers situations where an official is physically absent from his or her place of work. 109 Therefore, as the Advocate General noted in point 64 of his Opinion, to consider an official who is present at his or her place of work but who performs his or her duties badly, or is even guilty of insubordination, to be in a situation of ‘unauthorised absence’, within the meaning of the first paragraph of Article 60 of the Staff Regulations, and, accordingly, that deductions may be made from his or her salary or number of days’ leave constitutes misapplication of disciplinary measures. Such an incorrect classification of ‘unauthorised absence’ results in the imposition on the official of disciplinary measures not provided for by the Staff Regulations, without the benefit of the necessary safeguards provided by disciplinary proceedings conducted in accordance with the law. 110 It follows that the General Court erred in law in taking the view, in the order under appeal, that, even if it were established that the appellant was actually present in EEAS office buildings, she had failed to comply with the conditions laid down by Articles 21 and 55 of the Staff Regulations, on the ground that she had made clear her intention not to work within the division, that, therefore, the EEAS cannot be criticised for considering the applicant to be in a situation of unjustified absences and that, since the absences deducted by the EEAS had not been authorised in advance by the appellant’s superiors, the EEAS could, in accordance with Article 60 of the Staff Regulations, impose a salary deduction amounting to 72 calendar days. 111 It follows from the foregoing considerations that the first complaint of the fifth part of the single ground of appeal is well founded. 112 Consequently, the order under appeal must be set aside without there being any need to examine the second complaint of the fifth part of the single ground of appeal, or the other parts of that ground of appeal. The action before the General Court 113 In accordance with the second sentence of the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, the Court may, after quashing the decision of the General Court, itself give final judgment in the matter, where the state of the proceedings so permits. 114 That is the case with the present proceedings. The application for annulment of the contested decision and the decision rejecting the complaint 115 It should be noted that the error of law referred to in paragraph 110 of the present judgment also vitiates the contested decision and the decision rejecting the complaint. 116 It follows from the decision rejecting the complaint that the EEAS took the view that an official is present within that service when he or she satisfies the two cumulative conditions arising from Articles 21 and 55 of the Staff Regulations, namely to assist his or her superiors by performing the tasks entrusted to him or her and to make himself or herself available to the institution at all times. In that regard, the EEAS, first, took the view that an official who has declared his or her intention not to assist his or her superiors and not to perform the tasks entrusted to him or her did not satisfy the conditions for being actually present within the service and was in a situation of unjustified absence. Second, it rejected the evidence relied on by the appellant as not demonstrating an ‘effective presence’ for the purposes of the conditions laid down by Articles 21 and 55 of the Staff Regulations. 117 The EEAS inferred from an alleged failure to comply with the obligations imposed by Articles 21 and 55 of the Staff Regulations that the appellant was in a situation of ‘unauthorised absence’ within the meaning of Article 60 of the Staff Regulations. As was pointed out in paragraph 95 of the present judgment, for the purposes of applying the first paragraph of Article 60 of the Staff Regulations, the duly established absence of the official concerned and the lack of prior permission from his or her superior to that effect are decisive, except in case of sickness or accident, and therefore that absence must be understood as being a physical absence from the official’s place of work. 118 The contested decision and the decision rejecting the complaint must, therefore, be annulled. The application for repayment 119 By her action before the General Court, the appellant also requested that the amounts to be repaid to her be increased by default interest at the rate of 5% per annum or a different rate, calculated on the day on which actual recovery takes place and according to the dates of the various deductions made. 120 In that regard, it should be recalled that, under the second sentence of Article 91(1) of the Staff Regulations, the General Court has, in disputes of a financial character, unlimited jurisdiction (judgment of 21 February 2008, Commission v Girardot, C‑348/06 P, EU:C:2008:107, paragraph 58). 121 The unlimited jurisdiction conferred on the EU judicature by Article 91(1) of the Staff Regulations entrusts it with the task of providing a complete solution to the disputes brought before it, that is to say of ruling on all the rights and obligations of the staff member, save for leaving to the institution in question, under the control of the court, the implementation of such part of the judgment and under such precise conditions as the court shall determine (judgment of 18 December 2007, Weißenfels v Parliament, C‑135/06 P, EU:C:2007:812, paragraph 67). 122 It is for the Courts of the European Union, in an appropriate case, to order an institution to pay a sum to which the applicant is entitled under the Staff Regulations or another legal measure (judgments of 18 December 2007, Weißenfels v Parliament, C‑135/06 P, EU:C:2007:812, paragraph 68, and of 10 September 2015, Réexamen Missir Mamachi di Lusignano v Commission, C‑417/14 RX-II, EU:C:2015:588, paragraph 40). 123 ‘Disputes of a financial character’, within the meaning of Article 91(1) of the Staff Regulations, include not only actions brought by staff members seeking to have an institution held liable, but also all those seeking payment by an institution to a staff member of a sum which he considers to be due to him under the Staff Regulations or other measure governing their working relations (judgment of 18 December 2007, Weißenfels v Parliament, C‑135/06 P, EU:C:2007:812, paragraph 65). 124 In the present case, the appellant’s request that the EEAS reimburse her the amounts deducted from her salary and that those amounts be increased by default interest has a financial character, within the meaning of Article 91(1) of the Staff Regulations. 125 In the light of the annulment of the contested decision and the decision rejecting the complaint, that request must be upheld and the EEAS ordered to reimburse the appellant the amounts wrongly deducted from her salary, amounting to 71.5 days, since the decision rejecting the complaint upheld the applicant’s request relating to one half day. Those amounts shall be increased, for reasons of equity, by interest at the rate of 5% per annum from the date of their deduction. Costs 126 In accordance with Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is well founded and the Court itself gives final judgment in the case, the Court is to make a decision as to the costs. 127 Article 138(1) of those Rules of Procedure, which is applicable to appeal proceedings by virtue of Article 184(1) thereof, provides that the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since WV has applied for costs and the EEAS has been unsuccessful, the latter must be ordered to pay, in addition to its own costs, the costs incurred by WV both in the proceedings at first instance and in the present appeal. On those grounds, the Court (Seventh Chamber) hereby: 1. Sets aside the order of the General Court of the European Union of 29 January 2020, WV v EEAS (T‑471/18, not published, EU:T:2020:26); 2. Annuls the decision of the European External Action Service (EEAS) of 27 November 2017 imposing a salary deduction amounting to 72 calendar days and the EEAS’s decision of 2 May 2018 rejecting the appellant’s complaint of 3 January 2018; 3. Orders the EEAS to reimburse the appellant the amounts wrongly deducted from her salary, amounting to 71.5 days. Those amounts shall be increased by interest at the rate of 5% per annum from the date of their deduction; 4. Orders the EEAS to bear its own costs and to pay the costs incurred by WV both in the proceedings at first instance and in the present appeal. [Signatures] * Language of the case: French.