JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

14 July 1998

Case T-219/97

Anita Brems

v

Council of the European Union

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

Full text in French II-1085

Application for:

annulment of the ‘decisions of the Council refusing to grant the applicant the whole of her sick leave from 24 May to 8 June 1996’.

Decision:

Application dismissed.

Abstract of the Judgment

On 29 April 1996, the applicant, who is an official of the Council posted to Brussels, asked the appointing authority for permission to undergo a thermal cure in Italy from 27 May to 8 June 1996. Pursuant to the internal directive of the Council of 3 January 1995 setting out the conditions for the grant of special leave laid down by Conclusion No 207/94 of the Committee of the Heads of Administration of the European Communities on special leave for undergoing thermal cures other than for postoperative or convalescent purposes, the applicant was awarded special leave amounting to half the working days she used up for the thermal cure (from 27 May to the morning of 3 June 1996 inclusive).

The applicant sent the defendant a medical certificate dated 24 May 1996 signing her off work from that date until 31 May 1996. She also requested permission to spend part of her sick leave (from 27 to 31 May 1996) away from her place of work, namely at the location where she was to undergo her thermal cure.

The applicant underwent her thermal cure in Italy from 27 May to 8 June 1996.

On 9 August 1996 the applicant complained to the administration that she had not been granted any sick leave during that period.

On 26 August 1996 the defendant informed the applicant that the medical certificate of 24 May 1996 had not been accepted because the cure was covered by special leave for thermal cures and she was therefore considered to be fit for work during that period. On 29 August 1996, she requested the administration to review her position.

On 11 September 1996 the defendant partially upheld that request by accepting the medical certificate of 24 May 1996 for the three days prior to the start of the thermal cure (from 24 to 26 May 1996). On 23 September 1996 the applicant again requested that the period from 27 to 31 May 1996 be annulled as special leave for thermal cures and replaced with sick leave. In a note sent the next day to Dr Boussart, the defendant institution's medical adviser, she requested additional special leave for thermal cures for the period from 3 June to the morning of 8 June 1996 inclusive.

By letter of 25 September 1996, the defendant confirmed its decision of 11 September 1996. It stated that no entitlement to sick leave arises unless the special leave for the cure is interrupted, which was not the case here.

By letter of 2 October 1996 the Council's Director of Personnel and Administration rejected the applicant's request for special leave for the second half of the period of the cure on the ground that Dr Boussart's opinion was unfavourable, in accordance with the Conclusion of 1 February 1996 of the Heads of Administration of all the institutions which confirmed that the second instalment of special leave should only be granted for a thermal cure associated with an illness eligible for reimbursement at 100%.

On 31 December 1996 the applicant submitted a memorandum, which she described as a complaint against the letters of 25 September and 2 October 1996 on the grounds of infringement of Articles 59 and 60 of the Regulations and Rules applicable to officials and other servants of the European Communities (the Staff Regulations), and of the illegality of the Conclusion of the Committee of the Heads of the Administration relating to the award of the second instalment of special leave for thermal cures. On 25 April 1997 the defendant expressly rejected the complaint.

The substance

First plea in law: infringement of Articles 59 and 60 of the Staff Regulations

Article 59 of the Staff Regulations must be interpreted as meaning that an official who takes a thermal cure is only entitled to sick leave if he or she can show that at the time of the cure, he or she is incapable of work owing to illness or accident. 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 the cure. An official who takes a cure is not ‘prevented from performing his duties’ during the cure by reason of illness or accident but because he or she is attending an institution, and so cannot be at the location of the cure and at his or her place of work simultaneously (paragraph 61).

See: T-196/97 Continolo v Commission [1998] ECRSC II-261, paras 35 and 36

Second plea in law: illegality of the Conclusion of the Committee of the Heads of Administration on the award of the second instalment of special leave for thermal cures

The Conclusion of the Committee of the Heads of Administration whose legality the applicant is challenging governs the ‘special leave’ which may be granted for the purposes of a cure. It is based on the second paragraph of Article 57 of the Staff Regulations, not Article 59. It is therefore not intended to regulate certain instances of sick leave and does not limit the scope of Article 59 (paragraph 73).

See: Continolo v Commission, cited above

The argument that the contested Conclusion infringes the second paragraph of Article 20(2) of the common rules because of an overlap between the duties of the medical adviser to the settlements office and the medical adviser to the institution must also be rejected (paragraph 74).

The argument that the appointing authority waived its discretion by making its decision directly subject to the opinion of the common sickness insurance scheme's doctor must also be rejected (paragraph 75).

Third plea in law: breach of the obligation to provide reasons under Article 25(2) of the Staff Regulations

The reasons given for the contested act satisfy the requirements of Article 25(2) of the Staff Regulations.

Operative part:

The application is dismissed.