Judgment — ECLI:EU:T:2003:134
Date: 2003-05-07
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Concepts: Pleas in law;Annual leave
Procedure: Staff cases - successful

SUMMARY - CASE I-23/01 
Summary 
1. Officials - Actions - Pleas in law - Misuse of powers - Definition 
2. Officials - Leave - Annual leave - Officials posted outside the Community -
Indirect reduction of annual leave by amendment, for the officials concerned, of the 
list of public holidays - Misuse of power - Illegality 
(Staff Regulations, Art. 57; Annex X, Art. 6; Rules establishing the list of public 
holidays of officials of the European Communities) 
1. A misuse of powers is deemed to exist if it is proven that the institution, in 
adopting the contested act, was pursuing an objective other than that pursued by the 
rules in question or if it is apparent, on the basis of objective, relevant and 
consistent evidence, that the act in question was adopted for purposes other than 
those stated. 
(see para. 40) 
See: T-35/96 Rasmussen v Commission [1997] ECR-SC I-A-61 and II-187, para, 70 
2. The days of leave to which an official is entitled on the one hand, and the public 
holidays determined by the institutions without creating an entitlement on the part 
of the official, on the other, are different in nature and are therefore not 
interchangeable. There is therefore no need, as a rule, to take account, for the 
purpose of determining public holidays, of the number of days' leave to which 
officials are entitled. 
I-A - 136 
KIMMAN v COMMISSION 
It follows that the Commission commits a misuse of power in using its discretion 
under Article 1(3) of the Rules establishing the list of public holidays of officials of 
the European Communities to amend that list, in respect of its staff, in order to 
eliminate a supposed imbalance in days of annual leave between officials posted in 
the territory of the Community, who receive 24 to 30 days' leave per year under 
Article 57 of the Staff Regulations, and those posted to a third country, who receive 
five calendar days for each month of service under Article 6 of Annex X to the Staff 
Regulations. 
Article 6 of Annex X to the Staff Regulations confers on the officials concerned an 
entitlement which they cannot be denied, directly or indirectly, unless that provision 
has been amended according to the special procedure provided for that purpose. 
(see paras 41, 43, 47, 49) 
I-A - 137