JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Second Chamber)

26 May 2011



Case F-40/10

Giorgio Lebedef

v

European Commission

(Civil service — Officials — Annual leave — Absence without prior permission after annual leave used up — Forfeiture of remuneration — Article 60 of the Staff Regulations)

Application: brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr Lebedef seeks annulment of the decision of the Director-General of Eurostat of 11 August 2009 withholding five and a half days’ remuneration on account of absences (corresponding to that number of days) occurring after he had used up his annual leave and without prior permission from his superior.

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

Summary

1. Officials — Leave — Annual leave — Leave resulting in a negative balance — Need to apply for prior permission — Official on 50% secondment as union representative — No effect

(Staff Regulations, Art. 60)

2. Officials — Leave — Annual leave — Rules introduced by the Commission — Leave resulting in a negative balance — Application for prior permission — Obligation to state reasons

(Staff Regulations, Art. 60)

3. Officials — Unauthorised absence — Subsequent regularisation — Conditions

(Staff Regulations, Art. 60)

4. Officials — Decision adversely affecting an official — Obligation to state the reasons on which the decision is based — Scope

(Staff Regulations, Art. 25)

5. Officials — Actions — Act adversely affecting an official — Decision taken against a background of psychological harassment — Need for a link between the harassment and the contested decision

(Staff Regulations, Arts 90 and 91)

6. Officials — Psychological harassment — Concept

(Staff Regulations, Art. 12a(3))

1. It is clear from the wording of Article 60 of the Staff Regulations that annual leave resulting in a negative balance requires prior permission from the superior of the staff member concerned. In that respect, an official who has failed to obtain such permission cannot rely on the claim that he does not, de facto, work for his department because he is on 50% secondment as a trade union representative.

In accordance with the principle that offending should not benefit the offender, the official’s unauthorised absences during the remaining 50% do not exempt him from compliance with the rules on leave. Consequently, in being absent without first ascertaining whether his leave application has been approved, the official places himself in a situation of unauthorised absence in the light of the requirement that he must obtain prior permission from his superior.

(see paras 26, 30)

See:

16 December 2010, T-364/09 P Lebedef v Commission, and T-52/10 P Lebedef v Commission

7 July 2009, F-39/08 Lebedef v Commission; 30 November 2009, F-54/09 Lebedef v Commission

2. Under the implementing provisions on leave adopted by the Commission, annual leave resulting in a negative balance requires prior permission from the superior of the staff member concerned, and that permission may be granted only in exceptional cases and following a reasoned application. Since permission must be given before the staff member goes on leave, the same must necessarily apply to the statement of reasons on the basis of which the superior decides whether or not to grant the permission applied for. An application may therefore not be regarded as containing a statement of reasons where the explanations are provided subsequently and are not available to the superior at the time when he decides not to grant the leave application. Consequently, the superior cannot be criticised for not having granted the application.

Furthermore, the fact that the prior permission required is granted only in exceptional cases and under the responsibility of the superior of the staff member concerned necessarily means that the administration has a wide discretion on the subject, which it exercises by virtue of its power of internal organisation.

(see paras 26, 31, 32)

See:

7 July 2009, F-39/08 Lebedef v Commission, para. 55; 30 November 2009, F-54/09 Lebedef v Commission, para. 48

3. Belated statements certifying that the official was present at trade union or official staff representation duties cannot validate his unauthorised absences after the event, since such validation is possible only in the case of sickness or accident, in accordance with Article 60 of the Staff Regulations. In any event, even where ex post statements are provided, the competent administration must be able to retain a certain right to review and assess the validity of the a posteriori regularisation of an absence deemed unauthorised.

(see para. 32)

4. Any failure to state the reasons for a decision of a Union institution against an official may be rectified if an adequate statement of reasons is provided at the stage of the reply to the complaint, since the reasons for the reply are deemed to be the same as those for the decision against which the complaint was directed.

(see para. 38)

See:

18 September 2003, T-221/02 Lebedef and Others v Commission, para. 62

7 November 2007, F-57/06 Hinderyckx v Council, para. 25

5. It is not because psychological harassment suffered by an official has been proved to exist that any decision adversely affecting that official and occurring within the time-frame of that harassment is thereby unlawful; there must also be an evident link between the harassment in question and the reasons for the contested decision.

(see para. 42)

See:

24 February 2010, F-2/09 Menghi v ENISA, para. 69; 4 April 2011, F-45/10 AO v Commission, para. 39

6. A refusal to grant leave in order to ensure the proper working of the department cannot, in principle, be regarded as a case of harassment. That is particularly true where the official fails to complete the required administrative formalities in not obtaining prior permission from his superior before being absent. For the same reasons, the official cannot reasonably claim that the refusal to grant his leave application or the failure to regularise that application a posteriori is conduct capable of being classified as psychological harassment.

(see paras 45-46)

See:

4 May 2005, T-144/03 Schmit v Commission, para. 78; 25 October 2007, T-154/05 Lo Giudice v Commission, para. 107