JUDGMENT OF THE COURT OF FIRST INSTANCE (First Chamber)

29 March 2007

Case T-368/04

Luc Verheyden

v

Commission of the European Communities

(Staff case – Application to carry over annual leave – Requirements of the service – Sick leave – Protection of legitimate expectations)

Application: firstly, for annulment of the decisions of the applicant’s head of unit, dated 4, 24 and 27 February 2004, relating to the applicant’s application to carry over from 2003 to 2004 the days of annual leave not taken which exceeded the threshold of 12 days and for annulment of the administration’s decision of 1 June 2004, received on 14 June 2004, rejecting the applicant’s complaint, and, secondly, for an order that the Commission pay compensation for 32 days of annual leave not used up and not paid, together with interest at 5.25% from the date of commencement of this action and for an order for payment of damages in respect of non-material damage, detriment to his career and detriment to his reputation.

Held: The decision of the applicant’s superior of 27 February 2004 refusing to sign his application to carry over annual leave from 2003 to 2004 is annulled in so far as it refuses to grant the carrying over, in addition to the 12 days which may be carried over as of right, of eight days of annual leave referred to by the director of resources of the Joint Research Centre in an email of 11 February 2003. The Commission is ordered to pay the applicant a sum corresponding to eight thirtieths of his monthly remuneration at the time of leaving the service, together with default interest as from 13 September 2004. The rate of default interest to be applied is to be calculated on the basis of the European Central Bank’s rate for its main refinancing operations, in force during the period concerned, plus two percentage points. The action is dismissed as to the remainder. The Commission is ordered to bear its own costs and to pay the costs incurred by the applicant.

Summary

1. Officials – Leave – Annual leave – Carrying over

(Staff Regulations, Art. 57; Annex V, Art. 4)

2. Officials – Leave – Annual leave – Termination of service – Financial compensation for unused leave

(Staff Regulations, Art. 59(1), first para.; Annex V, Art. 4)

3. Officials – Leave – Annual leave – Termination of service – Financial compensation for unused leave

(Staff Regulations, Annex V, Art. 4)

1. Where the administration has examined an application, submitted outside the period required by its internal rules, to carry over days of annual leave from one calendar year to the next, agreeing to overlook that procedural defect during the administrative procedure, and where there is no indication suggesting that the period provided for under those rules is one which may not under any circumstance be departed from, such an attitude is consistent with the principles of regard for the welfare of officials and sound administration which must guide it in its relations with staff. In an appeal against the rejection of such an application, the administration cannot, therefore, reverse the decisions it took at the administrative procedure stage by claiming before the Court, for the first time, that the official’s application was submitted out of time. In doing so, the administration would be asking the Community judicature to examine the legality of a circumstance on which it has not taken a position in the contested decision and would be calling into question a situation which it had itself accepted.

(see paras 41-42)

2. It follows from the first paragraph of Article 4 of Annex V to the Staff Regulations that it is only if an official has not been able to use up his annual leave during the current calendar year for reasons attributable to the requirements of the service that the amount of unused leave carried over may exceed 12 days. Similarly, the second paragraph of Article 4 of Annex V to the Staff Regulations grants an official who has left the service the compensation provided for in that paragraph only for days of annual leave which have not been taken because of the requirements of the service. The term ‘requirements of the service’ must be interpreted as referring to professional activities preventing the official, because of the duties incumbent upon him, from taking the annual leave to which he is entitled.

That definition cannot be interpreted as covering a situation where the official has been placed on sick leave, even in the event of prolonged illness. As is clear from the provisions of the first paragraph of Article 59(1) of the Staff Regulations, which state that an official is only entitled to sick leave if he ‘provides evidence of incapacity to perform his duties’, in such a situation the official is, by definition, relieved of his duties and is therefore not in service as provided for in the first paragraph of Article 4 of Annex V to the Staff Regulations.

Furthermore, the official also cannot invoke his workload in order to justify an application to carry over leave, where the administration considered that that workload did not prevent him from taking leave. It is not for the official to assess whether the interest of the service requires him not to take leave in order to perform certain tasks and to carry the corresponding days over to the following year, since such assessments are solely a matter for his superiors. The administration has a broad discretion in this respect and the Court’s review must be confined to the question whether it remained within reasonable bounds and did not use its power in a manifestly incorrect way, without the Court substituting its assessment for that of the administration.

(see paras 56, 61, 63, 70-72)

See: 233/85 Bonino v Commission [1987] ECR 739, para. 5; T‑143/98 Cendrowicz v Commission [1999] ECR-SC I‑A‑273 and II‑1341, para. 61; T‑80/04 Castets v Commission [2005] ECR-SC I‑A‑161 and II‑729, paras 28 to 30 and 33

3. The administration is perfectly at liberty to determine in advance, during the course of the year, how it intends to decide, once the year is ended, on what constitute ‘reasons [attributable to] the requirements of the service’ within the meaning of Article 4 of Annex V to the Staff Regulations, which may substantiate applications to carry annual leave over from one calendar year to the next. That possibility, in the form of a ‘leave assimilation plan’, offers the administration an obvious advantage in that an official who has too many days’ leave knows how the administration intends to receive future applications to carry that leave over. The official and his head of unit are thus able to know in advance and to anticipate what must be done during the year in question. The official can take leave without fearing that his absence will harm the interest of the service, and the head of unit can better anticipate the problems arising from the absence of one of his staff.

Such a leave assimilation plan is not contrary to the interest of the service or to the applicable provisions of the Staff Regulations. The indications it contains regarding the administration’s assessment of ‘reasons [attributable to] the requirements of the service’ for the following year, and, consequently, of the days’ leave which it considers may be carried over, constitute precise assurances such as to create legitimate expectations in the person to whom they are addressed.

(see paras 88-90)