JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Second Chamber)

15 March 2011

Case F-120/07

Guido Strack

v

European Commission

(Civil service — Officials — Carry-over of days of annual leave — Article 4 of Annex V to the Staff Regulations — Reasons attributable to the requirements of the service — Article 73 of the Staff Regulations — Directive 2003/88/EC — Right to annual paid leave — Sick leave)

Application: brought under Articles 236 EC and 152 EA, in which Mr Strack seeks annulment of the decisions of the Commission of 30 May 2005, 25 October 2005, 15 March 2007 and 20 July 2007, in so far as they limit to 12 days the amount of annual leave carried over as days not taken in 2004 and limit accordingly the sum paid by way of compensation upon his leaving the service, and an order that the Commission pay compensation corresponding to 26.5 days of annual leave, plus default interest from 1 April 2005.

Held: The decision of the Commission of 15 March 2007 rejecting the applicant’s request to carry over the balance of the days of leave for 2004 is annulled. The remainder of the action is dismissed. The Commission is ordered to bear its own costs and to pay those incurred by the applicant.

Summary

1. Officials — Leave — Annual leave — Termination of service — Financial compensation for unused leave — Calculation of compensation

(European Parliament and Council Directive 2003/88, Art. 7(2))

2. Officials — Leave — Annual leave — Carried over as a result of absence for long-term illness

(Staff Regulations, Arts 1e and 57; Annex V, Art. 4, first para.)

1. It follows from Article 7(2) of Directive 2003/88 concerning certain aspects of the organisation of working time that an official whose medically certified incapacity for work lasted for almost the whole of the reference period cannot be deprived of the possibility of receiving financial compensation for annual leave which was not taken.

That financial compensation must be calculated so that the official is put in a position comparable to that he would have been in had he exercised that right during his employment relationship. Consequently, the official’s normal remuneration, which is that which must be maintained during the rest period corresponding to the paid annual leave, is also decisive as regards the calculation of the financial compensation in lieu of annual leave not taken by the end of the employment relationship.

(see paras 65, 69)

See:

20 January 2009, C-350/06 and C-520/06 Schultz-Hoff, para. 61

2. Where an official is prevented from taking his annual leave owing to long-term illness, the total annual leave as fixed by the Staff Regulations, by the application of Article 1e in conjunction with Article 57 of the Staff Regulations, must be carried over, in spite of the restrictions contained in the first paragraph of Article 4 of Annex V to the Staff Regulations as concerns the possibility of carrying untaken annual leave over to the following year.

A decision of the administration refusing, by application of that article, to allow the carry-over of the days of annual leave in excess of the 12 days automatically carried over, which had not been taken by the applicant owing to long-term sick leave, must therefore be annulled.

(see paras 77, 79)