62021TJ0618_RES
Case T‑618/21
WV
v
Translation Centre for the Bodies of the European Union
Judgment of the General Court (Seventh Chamber), 5 October 2022
(Civil service – Members of the temporary staff – Sick leave – Unjustified absences – Termination of the contract without notice – Article 16 of the CEOS – Article 48(b) of the CEOS – Liability)
Civil service – Members of the temporary staff – Termination of a contract of indefinite duration at the end of a period of sick leave – Conditions – Cumulative nature
(Conditions of Employment of Other Servants of the European Union, Art. 16, second paragraph, and Art. 48(b))
(see paragraph 29)
Civil service – Members of the temporary staff – Termination of a contract of indefinite duration at the end of a period of sick leave – Conditions – Expiry of the period for paid sick leave – Obligation upon the administration to verify – Non-compliance on grounds of the unjustified absences of the staff member – Inadmissibility
(Conditions of Employment of Other Servants of the European Union, Art. 16, second paragraph, and Art. 48(b))
(see paragraphs 35, 36, 41)
Civil service – Members of the temporary staff – Termination of a contract of indefinite duration at the end of a period of sick leave – Conditions – Inability of the staff member to resume his duties – Date to be taken into account – Date after the expiry of the period for paid sick leave
(Conditions of Employment of Other Servants of the European Union, Art. 16, second paragraph, and Art. 48(b))
(see paragraph 40)
Résumé
WV was recruited by the Translation Centre for the Bodies of the European Union (CdT) in 1997 and signed a contract of indefinite duration in 2004. From 23 July to 15 November 2019, WV was put on paid sick leave. His absence from 18 November 2019 to 7 February 2020 was regarded by the CdT as unjustified. His absences from 8 February to 10 April 2020 and from 29 April to 4 May 2020 were, however, accepted by the CdT as justified. From 5 May 2020 onwards, his absences were regarded as unjustified.
WV’s lawyer requested that he be declared invalid. She stated that, given WV’s state of health, a return to normal was not to be expected in the near future. By letter of 14 September 2020, the CdT rejected that request and informed WV that it was proposing to apply Article 48(b) of the Conditions of Employment of Other Servants of the European Union (‘the CEOS’) and terminate his employment.
On 26 November 2020, on the basis of that provision, which provides for the possibility of terminating employment without notice if the servant is unable to resume his duties at the end of a period of paid sick leave, a decision terminating WV’s employment without notice was adopted. WV then brought an action before the General Court seeking the annulment of that decision (‘the contested decision’).
The General Court upholds the action and annuls the contested decision. In its judgment, the General Court gives a ruling on the question, not previously decided in the case-law, of whether the administration can terminate the employment of a staff member pursuant to Article 48(b) of the CEOS solely on the basis of his or her unjustified absences and the interests of the service, without examining whether the conditions laid down in the second paragraph of Article 16 of the CEOS, to which Article 48(b) thereof refers, are fulfilled.
Findings of the General Court
The General Court states that it is clear from the second paragraph of Article 16 and from Article 48(b) of the CEOS that the employment of a servant may be terminated where two conditions are met: first, the period for paid sick leave must have expired and the servant must be unable to resume his or her duties at the end of that period.
As regards the first condition, relating to expiry of the period for paid sick leave, the General Court points out that the paid sick leave mentioned in Article 48(b) of the CEOS, at the end of which the servant’s ability to resume his or her duties is to be assessed, is that provided for in the second paragraph of Article 16 of the CEOS.
It is clear from a combined reading of Article 48(b) of the CEOS and the second paragraph of Article 16 of the CEOS that a servant’s employment may be terminated without notice at the end of his or her paid sick leave if that leave is either longer than three months or longer than the length of time worked by the member of staff in question, where the latter is longer.
Therefore, in order to terminate the applicant’s employment on the basis of Article 48(b) of the CEOS, the CdT was required to verify that that condition was met.
In that regard, the General Court notes that the CdT considered that WV’s unjustified absences, by terminating his entitlement to paid sick leave, relieved the administration of the obligation to verify the fulfilment of the condition relating to the expiry of the period for paid sick leave to which the applicant was entitled. However, neither Article 48(b) of the CEOS, on which the contested decision is based, nor the provisions of the second paragraph of Article 16 of the CEOS, which lays down the latter condition, provide that a decision to terminate employment without notice may be adopted without first verifying the expiry of the period for paid sick leave to which the staff member concerned is entitled in accordance with the rules in the second paragraph of Article 16 of the CEOS. Moreover, neither of those provisions, nor Article 59 of the Staff Regulations, which sets out, inter alia, the legal regime applicable to sick leave and unjustified absences, suggests that verification of the condition relating to the expiry of the period for paid sick leave provided for by the second paragraph of Article 16 of the CEOS might be replaced, in cases of unjustified absence on the date of the contested termination or prior to that date, by the formal taking of note of such absences. Consequently, in the contested decision, the CdT applied a condition relating to unjustified absence which is not contemplated by Article 48(b) and the second paragraph of Article 16 of the CEOS and terminated WV’s employment for an indefinite duration without having verified that the first condition laid down by those provisions was fulfilled.
As regards the second condition, relating to the servant’s inability to resume his duties at the end of the period of paid sick leave, the General Court finds that it is apparent from the letters from WV’s lawyers that WV acknowledged that he was not able to resume his duties, which indeed the CdT took into account in the contested decision, referring to the content of those letters in that decision.
However, since the date on which that inability to resume duties ought to have been established is, according to Article 48(b) of the CEOS, after the expiry of the period for paid sick leave, which, as previously noted, the CdT had not evaluated, the second condition cannot be regarded as fulfilled. The General Court therefore concludes that, by adopting the contested decision, the CdT infringed Article 48(b) and the second paragraph of Article 16 of the CEOS.