JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(First Chamber)

9 December 2008

Case F-106/05

T

v

Commission of the European Communities

(Civil service – Officials – Sick leave – Sick leave deducted from annual leave entitlement – Loss of benefit of remuneration – Application to carry over annual leave – Inadmissibility – Action for damages)

Application: brought under Articles 236 EC and 152 EA, in which T essentially seeks, first, annulment of the Commission’s decisions deeming some of her absences in 2004 and 2005 to be unjustified, deducting the absences in question from her annual leave entitlement and reducing her remuneration, second, annulment of the Commission’s decision refusing to allow her to carry over to 2005 more than 12 days of annual leave not taken in 2004, and third, an order for the Commission to pay her damages.

Held: The Commission is ordered to pay the applicant the sum of EUR 5 000. The remainder of the action is dismissed. The Commission is ordered to bear its own costs and to pay three quarters of the applicant’s costs. The applicant is to bear one quarter of her own costs.

Summary

1. Officials – Actions – Action for damages – Pre-litigation procedure – Application seeking compensation for harm caused by a withdrawn measure

(Staff Regulations, Arts 90 and 91)

2. Officials – Actions – Prior administrative complaint – Time-limit for lodging a complaint – Calculation

(Staff Regulations, Art. 90(2); Council Regulation No 1182/71, Art. 3(4))

3. Officials – Sick leave – Evidence of illness – Production of a medical certificate – Presumption of regularity of absence

(Staff Regulations, Art. 59(1) and (3))

1. Under the system of remedies established by Articles 90 and 91 of the Staff Regulations, where the person concerned intends to seek compensation for the harm allegedly caused by an act adversely affecting him which was subsequently withdrawn by the administration, the pre-litigation procedure cannot begin with the lodging of a complaint, since the act having an adverse effect is deemed never to have existed. It is therefore for the person concerned to submit a request to the administration as provided for in Article 90(1) of the Staff Regulations and then, if that request is rejected, to lodge a complaint against that rejection.

However, in circumstances where the act having an adverse effect is withdrawn after a complaint has been lodged within the prescribed time-limit, it would be contrary to procedural economy to require the person concerned to initiate a new pre-litigation procedure and to submit a new request to the administration under Article 90(1) of the Staff Regulations. Once the administration has given an implied or explicit decision on his complaint, all he must do is to bring an action, within the prescribed time-limit, seeking compensation for the harm allegedly caused by the withdrawn act.

(see paras 94-95)

2. As the Staff Regulations are an act of the Council, and in the absence of any specific rules relating to the time-limits referred to in Article 90, the rules applicable to the time-limit laid down by Article 90(2), which provides that the complaint must be lodged within three months, are contained in Article 3(4) of Regulation No 1182/71 determining the rules applicable to periods, dates and time-limits.

(see paras 98-99)

See:

38/84 K. v Parliament [1985] ECR 1267, para. 20; 152/85 Misset v Council [1987] ECR 223, paras 8 and 9

T-192/94 Maurissen v Court of Auditors [1996] ECR-SC I‑A‑425 and II‑1229, para. 28; T-197/00 Onidi v Commission [2002] ECR‑SC I‑A‑69 and II‑325, para. 50

3. Where an official who is absent on sick leave has produced a medical certificate, the administration cannot, as is clear from the provisions of Article 59(1) of the Staff Regulations, regard that absence as unjustified unless the medical examination which it required the official to undergo revealed that he was capable of performing his duties, or, if the official concerned disputes the validity of the findings of the medical examination, unless the independent doctor appointed in the arbitration procedure confirmed those findings. It is only where that condition is satisfied that the administration may, under Article 59(3) of the Staff Regulations, deduct the unjustified absence from the official’s annual leave entitlement and, where that entitlement has been used up, reduce his remuneration for the corresponding period.

(see para. 112)