Judgment — ECLI:EU:T:1998:159
Date: 1998-07-08
Language of the case: French
Court formation: First Chamber
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Concepts: Unlimited jurisdiction;Specific cases of acts having adverse effect;Sick leave;General
Procedure: Staff cases - unfounded;Staff cases - successful

summary publication; T-527/93 O v 
Commission [1995] ECR-SC H-29, para. 37; T-169/95 Quijano v Commission [1997] ECR-SC 
11-273, paras 38 and 39, and the case-law cited therein; T-36/96 Gaspari v Parliament [1997] 
ECR-SC 11-595, para. 26 
In the present case the administration first regarded the applicant's absences as 
unauthorised with effect from 9 March 1994, when it questioned the validity of the 
medical certificate which he submitted for the period 21 February to 20 March 1994 
(paragraph 74). 
I-A - 359 
ABSTRACT - CASET-130/96 
However, the applicant's absence supported by that medical certificate could only 
be regarded as unauthorised as from the date of the medical examination arranged 
by the institution. It is common ground between the parties that during the period 
in issue, between 9 March 1994 and 15 February 1995, the applicant was first 
requested to attend for examination on 20 September 1994 (paragraph 76). 
Consequently, the unauthorised absences which the applicant is alleged to have taken 
during the period 9 March to 20 September 1994 were not duly established by the 
Council. It follows that those absences, amounting to 58 working days in all, 
should not have been deducted from the applicant's annual leave or have entailed 
the forfeiture of his remuneration for an equivalent period (paragraph 78). 
As regards the remaining part of the absences in issue, namely those recorded 
during the period 29 September 1994 to 15 February 1995, on the other hand, the 
Court considers that the Council was entitled to regard them as unauthorised 
(paragraph 79). 
The duty of the Community institutions to arrange a medical examination necessarily 
has as its corollary a duty on the part of the officials concerned, if Articles 59 and 
60 of the Staff regulations are not to be rendered ineffective, to undergo those 
examinations, or to submit certificates showing with sufficient clarity and beyond 
all argument that they are unable to travel (paragraph 83). 
See: T-135/95Z v Commission [1996] ECR-SC 11-1413, para. 34 
I-A - 360 
AQUILINO v COUNCIL 
In the present case the applicant clearly failed to comply scrupulously with his duty 
under the second subparagraph of Article 59(1) of the Staff Regulations 
(paragraph 84). 
It follows from all the foregoing considerations that the applicant's action is founded 
in part and that, accordingly, the Council's decision of 25 October 1995 must be 
annulled in part. It must stand only in so far as it orders recovery from the 
applicant's salary of the equivalent of 33 working days for unjustified absences 
between 29 September 1994 and 15 February 1995 (paragraph 86). 
It also follows from the foregoing assessment that consideration of the two 
remaining limbs put forward by the applicant in the context of the present plea is 
superfluous. First, the complaint alleging the unjustified retroactivity of the 
contested decision essentially confirms the arguments considered in the context of 
the first limb of the plea. Second, as regards the alleged breach of the 
administration's duty to have regard for the applicant, it is sufficient to observe that 
the protection of the rights and interest of officials must always be subject to 
compliance with the legal rules in force. 
See: T-123/89 Chomel v Commission [1990] ECR 11-131, para. 32; T-33/89 and T-74/89 
Blackman v Parliament [1993] ECR 11-249, para. 96 
Since the Court has decided that the decision is to be annulled in part, it must grant 
the applicant's financial claims in part and order the Council to repay the amounts 
improperly deducted from his salary, equivalent to 58 working days. Those sums 
shall be subject to interest from the date on which they were deducted, calculated 
at the rate of 5 % per annum determined by the Court in the exercise of its discretion 
(paragraph 88). 
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ABSTRACT - CASE T-130/96 
Operative part: 
The Council's decision of 25 October 1995 to recover the equivalent of 91 
working days from the applicant's salary for unjustified absences between 9 
March 1994 and 15 February 1995 is annulled in part in so far as it concerns 
58 days of allegedly unauthorised absence recorded during the period 9 March 
to 20 September 1994. 
The Council is ordered to repay to the applicant the amounts unduly deducted 
from his salary, equivalent to 58 working days. Those amounts shall be subject 
to interest at the rate of 5% per annum from the date when they were first 
deducted. 
The remainder of the application is dismissed. 
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