JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(First Chamber)





25 May 2011

Case F-22/10

Luis María Bombín Bombín

v

European Commission

(Civil service — Officials — Leave on personal grounds — Annual leave — Carry-over of annual leave — Official who has left the service — Financial compensation)

Application: brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr Bombín Bombín seeks annulment of the Commission’s decision to grant him, on his retirement, financial compensation calculated on the basis of a total of 29 days of annual leave not taken.

Held: The action is dismissed and the applicant is ordered to pay all the costs.

Summary

1. Officials — Leave — Annual leave — Carry-over to the following year of all days of leave not taken — Conditions

(Staff Regulations, Art. 1e(2); Annex V, Art. 4, first para.; European Parliament and Council Directive 2003/88, Art. 7(1))

2. Officials — Leave — Annual leave — Termination of service following leave on personal grounds — Financial compensation for unused leave — Conditions for granting

(Staff Regulations, Annex V, Art. 4)

3. Officials — Principles — Protection of legitimate expectations — Conditions — Leave sheet not signed — Document not giving rise to legitimate expectations

1. Although, under the first paragraph of Article 4 of Annex V to the Staff Regulations, leave entitlement for a calendar year must, in principle, be used up in that same year, it is also clear from that provision that an official is entitled to carry over all days of leave not taken in a calendar year to the following calendar year if he has not been able to use up his annual leave for reasons attributable to the requirements of the service.

Moreover, other reasons, though not attributable to the requirements of the service, may also warrant the carry-over of all unused leave, given the purpose of entitlement to annual leave. That is particularly true where an official who has been on sick leave for all or part of the calendar year has, for that reason, been unable to exercise his right to take annual leave. Article 7(1) of Directive 2003/88 concerning certain aspects of the organisation of working time, which applies to officials in accordance with Article 1e(2) of the Staff Regulations, is to be interpreted as guaranteeing that an official who has not been able to exercise his entitlement to annual leave during the calendar year because he was on sick leave is in fact able to take that annual leave after the calendar year in question.

However, where none of the reasons mentioned above, whether or not attributable to the requirements of the service, is such as to justify the fact that an official has not been able to use up his annual leave before the end of the current calendar year, the amount of unused leave carried over to the following year may not exceed 12 days.

(see paras 27-29)

See:

20 January 2009, C-350/06 and C-520/06 Schultz-Hoff, paras 43 and 55; 10 September 2009, C-277/08 Vicente Pereda, paras 22 to 25;

15 March 2011, F-120/07 Strack v Commission, paras 55 to 58

2. An official who has been on leave on personal grounds until his retirement is entitled to financial compensation for more than 12 days of unused leave only where it is established that, prior to his taking leave on personal grounds, he was unable to use up his leave for reasons attributable to the requirements of the service.

In that respect, the fact that the official was put on leave on personal grounds does not constitute a ground for carrying over all his days of leave not taken by that date if he was put on leave on personal grounds at his own request. In those circumstances, of the unused leave which he had remaining when he took personal leave, the maximum of 12 days provided for in Article 4 of Annex V to the Staff Regulations were carried over to subsequent years.

(see paras 30, 31, 33)

3. The right to claim the protection of legitimate expectations, which is one of the fundamental principles of European Union law, extends to any individual who is in a situation from which it is clear that, in giving him specific, unconditional and consistent assurances, coming from authorised and reliable sources, the European administration has led him to entertain reasonable expectations. In that respect, a leave sheet that has not been signed cannot be regarded as coming from a sufficiently authorised and reliable source. Furthermore, even if that document might be regarded as coming from such a source, it does not prove that the administration has formally adopted a position on whether days of leave not taken by an official may all be carried over to the following years.

(see para. 32)

See:

16 March 2005, T-329/03 Ricci v Commission, para. 79