JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

19 February 1998

Case T-196/97

Donato Continolo

v

Commission of the European Communities

‛Officials — Thermal cure — Article 59 of the Staff Regulations — Sick leave — Special leave’

Full text in French II-261

Application for:

annulment of the decision of the Commission of 24 June 1996 not to grant the applicant additional leave for the purposes of undergoing a thermal cure, as confirmed by the decision of 30 January 1997 rejecting the applicant's complaint.

Decision:

Application dismissed.

Abstract of the Judgment

At its 205th meeting on 8 December 1994 the Committee of the Heads of Administration of the European Communities approved Conclusion No 207/94 on special leave for undergoing thermal cures other than for postoperative or convalescent purposes (conclusion of 8 December 1994).

On 28 December 1994 the Commission set out, in internal Directive No 8927, published in Administrative Notices of 9 January 1995 (internal directive of 28 December 1994), the conditions for the grant of special leave laid down in the abovementioned conclusion. That internal directive, which was applicable to thermal cures with the exception of postoperative or convalescent cures with effect from 1 January 1995, provides that ‘[i]f a thermal cure is strictly necessary for medical reasons and is duly authorised by the Medical Officer of the Joint Sickness Insurance Scheme [RCAM], the appointing authority may grant special leave equal to half the time required for this cure — but no more than seven-and-a-half working days — provided that the cure takes place in establishments approved by the competent national authorities. In the light of the end-of-cure report, and acting on a proposal from the Medical Officer of the institution, the appointing authority may grant additional leave of up to seven-and-a-half days.’

On 23 May 1995 the Commission published Administrative Notices No 894, entitled ‘Procedure for the reimbursement of expenses for thermal cures and for special leave’.

On 1 February 1996 the Heads of Administration of all the institutions confirmed the criterion proposed by the inter-institutional Medical Council for the grant of the second period of additional leave for thermal cures. This period should only be granted for a thermal cure associated with a serious disease eligible for reimbursement at 100% (conclusion of 1 February 1996).

On 10 March 1995 the applicant applied to the officer responsible for payments of the RCAM at Ispra (office responsible for payment) for prior authorisation for a thermal cure lasting 20 days which he proposed to take in two periods, in May and September 1995. His request was supported by a medical certificate dated 9 March 1995 attesting that the applicant was suffering from lumbar sciatica and a slipped disc.

On 21 March 1995 the Medical Officer of the office responsible for payments at Ispra granted the authorisation sought by the applicant.

The applicant underwent a thermal cure from 8 to 20 May 1995 and from 25 September to 6 October 1995, a total of 19 working days. Pursuant to the internal directive of 28 December 1994 the applicant obtained seven-and-a-half days' special leave for the thermal cure.

On 20 December 1995 the applicant, relying on the internal directive of 28 December 1994, requested the Medical Officer to credit him with the total number of days of leave which he had taken when undergoing his thermal cure.

By note of 2 April 1996 Dr Orth, Head of the Medical Service at Ispra, informed the applicant that ‘on the basis of the conclusion of 8 December 1994 the Medical Officer of the institution is unable to propose that the appointing authority grant additional leave’.

By note of 10 June 1996 the applicant sent the Head of Unit 3 (‘Administration of Individual Rights’) of Directorate B (‘Rights and Obligations’) of Directorate-General IX (Personnel and Administration) (Unit IX.B.3), in his capacity as appointing authority, the medical service's refusal and requested seven-and-a-half days' additional leave for the thermal cure.

The applicant's request was rejected by note of 24 June 1996 on the ground that the grant of additional leave is subject to a positive opinion from the Medical Officer, which in the present case was lacking.

On 16 September 1996 the applicant submitted a complaint under Article 90(2) of the Staff Regulations of Officials of the European Communities against that decision. A decision expressly rejecting the complaint was adopted on 30 January 1997. That decision was notified to the applicant on 19 March 1997.

Substance

First plea, alleging infringement of Article 59 of the Staff Regulations and the illegality of the conclusion of 8 December 1994, the internal directive of 28 December 1994 and the conclusion of 1 February 1996

Since, pursuant to Article 59(1) of the Staff Regulations, sick leave is granted to an official only where he provides evidence of ‘incapacity to perform his duties because of sickness or accident’, the criterion governing the application of that provision lies in the official's incapacity to work at the time of his absence on account of sickness or accident. Accordingly, the medical certificate which an absent official is required to produce pursuant to Article 59(1) of the Staff Regulations must show‘conclusively and with sufficient precision [the official's] incapacity’ to work (paragraph 34).

See: T-135/95 Z v Commission [1996] ECRSC II-1413, para. 34

Article 59 of the Staff Regulations is therefore to be interpreted as meaning that an official who takes a thermal cure is only entitled to sick leave where he is able to show that, at the time of that cure, he is incapable of work owing to sickness or accident (paragraph 35).

The medical certificate which an official submits in order to obtain prior authorisation pursuant to point XI of Annex I to the Insurance Rules testifies only to the need for treatment in the form of a thermal cure within the meaning of those rules. However, the need to take a cure, which provides grounds for granting prior authorisation, does not in itself demonstrate that the official is incapable of work at the time of taking his cure (paragraph 36).

A thermal cure may be distinguished from medical treatment which affects the patient in his physical integrity and thus renders him incapable of working, such as an operation, dialysis or chemotherapy. In the latter case an official who undergoes such treatment is prevented from performing his duties because of sickness within the meaning of Article 59 of the Staff Regulations for the duration of that treatment, even though the treatment, like a thermal cure, may be programmed in advance (paragraph 37).

A medical certificate which provides grounds for granting prior authorisation for a thermal cure in the context of the insurance rales does not automatically give rise to the right to sick leave pursuant to Article 59 of the Staff Regulations. Nor, however, does the fact of taking a thermal cure in itself preclude the official from being granted sick leave under Article 59 of the Staff Regulations. Where the conditions laid down in Article 59 of the Staff Regulations are met the official is entitled to sick leave even where he is taking a cure (paragraphs 38 and 39).

Thus the conditions laid down in Article 59 of the Staff Regulations are met where an official proves by means of a medical certificate that in the course of his cure he was suffering from a sickness which would have prevented him from performing his duties if he had not been taking the cure. Just as an official who becomes ill during his annual leave is entitled to recover the days of leave during which he was ill, an official taking a thermal cure is entitled to sick leave for the days of his cure during which he would have been incapable of working because of sickness had he not been taking the cure (paragraph 40).

In the present case the certificate issued on 9 March 1995 by the doctor treating the applicant is not a medical certificate showing evidence of his incapacity to work owing to sickness or accident. The applicant has not shown that he was prevented from performing his duties because of sickness or accident within the meaning of Article 59 at the time of taking the cure. He therefore did not meet the necessary requirements to be granted sick leave for the period of his thermal cure (paragraphs 41 and 42).

Under the second paragraph of Article 57 of the Staff Regulations, apart from annual leave an official ‘may, exceptionally, be granted special leave. The rales relating to such leave are laid down in Annex V’. It follows from Article 6 of Annex V to the Staff Regulations that the cases referred to in that article are a non-exhaustive list of the situations which might give rise to entitlement to special leave. Annex V, to which the second paragraph of Article 57 of the Staff Regulations refers, therefore constitutes the appropriate legal basis for the grant of special leave, even in respect of absences, such as absences for thermal cures, which are not provided for in Article 6 of Annex V to the Staff Regulations. It was therefore quite proper that the internal directive of 28 December 1994 should be based on Annex V to the Staff Regulations (paragraph 43).

It follows that the measures whose legality the applicant challenges in the alternative govern the ‘special leave’ which may be granted for a thermal cure. They are not based on Article 59 of the Staff Regulations and are not designed to regulate certain cases of sick leave or to restrict the scope of Article 59 of the Staff Regulations. An official who needs to take a thermal cure will automatically be entitled to sick leave if he shows that the conditions in Article 59 are met (paragraph 44).

The argument alleging the illegality of the conclusions of the Heads of Administration of 8 December 1994 and 1 February 1996 and the internal directive of 28 December 1994 must therefore be rejected (paragraph 45).

Second plea, alleging breach of lhe obligation to state reasons and of the principles of legal certainty, of protection of legitimate expectations, of respect for acquired rights and of non-retroactivity

The purpose of the obligation to state the reasons on which a decision is based is, first, to provide the person concerned with the information necessary to know whether or not the decision is well founded and, second, to enable the Community judicature to review the legality of the decision. In order to determine whether the statement of reasons of a decision is adequate, it is necessary to place it in the context in which it was adopted (paragraph 52).

See: C-350/88 Delacre and Others v Commission [1990] ECR I-395, para. 16; T-26/90 Finsider v Commission [1992] ECR II-1789, para. 72; T-16/94 Benecos v Commission [1995] ECRSC II-335, para. 33; T-158/94 Brunagel v Parliament [1996] ECRSC II-1131, para. 106; T-178/95 and T-179/95 Picciolo and Caló v Committee of the Regions [1997] ECRSC II-155, para. 33

The Court considers that both the decision rejecting the request and the decision rejecting the complaint are adequately reasoned. The argument alleging infringement of the second paragraph of Article 25 of the Staff Regulations must therefore be rejected (paragraphs 53 to 58).

As regards the alleged breach of the principles of legal certainty and non-retroactivity, there is no evidence before the court that in the present case the appointing authority applied the criteria laid down in the conclusion of the Heads of Administration of 1 February 1996 when dealing with the applicant's request for the second instalment of his special leave (paragraph 59).

Operative part:

The application is dismissed.