Case T‑518/16

Francisco Carreras Sequeros and Others

v

European Commission

(Civil service — Officials and members of the contractual staff — Reform of the Staff Regulations of 1 January 2014 — Article 6 of Annex X to the Staff Regulations — New provisions relating to annual leave applicable to officials posted in a third country — Objection of illegality — Purpose of annual leave)

Summary — Judgment of the General Court (Fourth Chamber, Extended Composition), 4 December 2018

Social policy — Protection of the safety and health of workers — Organisation of working time — Right to paid annual leave — Particularly important principle of EU social law — Purpose — Significant reduction of the annual leave of EU officials serving in third countries — Incompatibility with that purpose

Social policy — Protection of the safety and health of workers — Directive 2003/88 concerning certain aspects of the organisation of working time — Minimum safety and health requirements — Requirements specific to certain categories of workers — Meaning — Provisions relating to annual leave applicable to officials and other staff serving in third countries — Not included

A plea of illegality raised indirectly under Article 277 TFEU, when challenging in the main proceedings the legality of another measure, is admissible only if there is a link between the contested measure and the provision forming the subject-matter of the plea. Since the purpose of Article 277 TFEU is not to enable a party to contest the applicability of any act of general application in support of any action whatsoever, the scope of a plea of illegality must be limited to what is necessary for the outcome of the proceedings. It follows that the general measure claimed to be illegal must be applicable, directly or indirectly, to the issue with which the action is concerned and there must be a direct legal connection between the contested individual decision and the general measure in question. Article 277 TFEU must be interpreted sufficiently broadly to enable effective judicial review of the legality of acts of the institutions of a general nature in favour of persons excluded from direct actions against such acts. Thus, the scope of Article 277 TFEU must extend to acts of the institutions which were relevant to the adoption of the decision forming the subject matter of the action for annulment, in the sense that that decision must essentially be based on them, even though such acts did not formally constitute the legal basis of that decision. Accordingly, the very nature of a transitional period is to organise the progressive shift from one regime to another in order to resolve difficulties inherent in putting the new regime in place or avoiding a sudden change in the old regime. In view of the link between transitional provisions and definitive provisions, the former having no raison d’être without the latter, and in view of the fact that the competent authority has no discretion, it must be held that there is a direct legal connection between the decisions reducing the annual leave of officials posted in third countries and the first paragraph of the new Article 6 of Annex X to the Staff Regulations and that, since that first paragraph is the culmination of the second paragraph, first indent, of the new Article 6 of Annex X to the Staff Regulations, it is at least indirectly applicable to those decisions inasmuch as it was relevant for the purposes of their adoption in so far as they were essentially based on it, even though it was not their formal legal basis. (see paras 30, 31, 34, 35)

The fact that a directive is not, as such, binding on the institutions does not mean that rules or principles laid down in that directive may not be relied on against the institutions, where those rules or principles themselves appear to be merely the specific expression of fundamental treaty rules and general principles directly applicable to the institutions. Likewise, a directive may be binding on an institution where the latter, within the scope of its organisational autonomy and within the limits of the Staff Regulations, has sought to carry out a specific obligation laid down by a directive or in the specific instance where an internal measure of general application itself expressly refers to measures laid down by the Union legislature pursuant to the Treaties. Lastly, the institutions must, in their conduct as employer and in accordance with their duty to cooperate in good faith, take account of legislative provisions adopted at EU level. Since the annexes to the Staff Regulations have the same legal force as the Staff Regulations themselves and in the absence of any order of precedence between Directive 2003/88 concerning certain aspects of the organisation of working time and Regulation No 1023/2013 amending the Staff Regulations, as that regulation does not take the form of a delegated act or act giving effect to that directive, Article 1e(2) of the Staff Regulations and Directive 2003/88 cannot be relied on in support of an objection of illegality to declare the new Article 6 of Annex X to the Staff Regulations inapplicable. However, it follows from Article 51(1) of the Charter of Fundamental Rights of the European Union that its provisions are addressed, in particular, to the EU institutions, which are therefore required to observe and promote the application of the principles embodied in it, including the right to annual leave guaranteed by Article 31(2) of the Charter. It should also be borne in mind that the explanations of the Praesidium of the Convention relating to the Charter must be taken into account in the interpretation of the Charter, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter. It follows that Article 31(2) of the Charter enshrines inter alia the substance of Council Directive 93/104 concerning certain aspects of the organisation of working time, which was subsequently replaced and codified by Directive 2003/88. In particular, Article 7 of Directive 2003/88 on annual leave is identical to Article 7 of Directive 93/104. It provides, in paragraph 1, that ‘Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and the granting of, such leave as laid down by national legislation and/or practice’. In so far as Directive 2003/88 is a concrete expression of the principle laid down in Article 31(2) of the Charter, as is apparent from the explanations of the Praesidium relating to the Charter, the legislature, bound as it is to comply with that article which has the same force as the Treaties, could not disregard the content of that directive. (see paras 61, 64, 66-69)

It follows from Article 1(3) of Directive 2003/88 concerning certain aspects of the organisation of working time that the minimum health and safety requirements for the organisation of working time set out in that directive apply as a matter of principle to all sectors of activity, both public and private. Against that background and also in the light of recital 14 of that directive, Article 14 thereof must be interpreted as referring to provisions specific to certain categories of workers due to the particularities of their occupations or occupational activities. Article 6 of Annex X to the Staff Regulations, relating to annual leave of officials and other members of staff serving in third countries, is not expressed as a specific requirement relating to the organisation of working time as provided for in Article 14 of Directive 2003/88, and the fact that Article 336 TFEU gave the European Parliament and the Council the power to adopt the Staff Regulations and the Conditions of Employment of Other Servants under the ordinary legislative procedure is not sufficient to prove that specificity. (see paras 75, 77)

It follows from Article 23 of Directive 2003/88 concerning certain aspects of the organisation of working time that a reduction in the protection which workers are guaranteed in the sphere of the organisation of working time is not prohibited as such by that directive but, in order for that reduction to be caught by the prohibition laid down by that article, it must, first, be connected to the ‘implementation’ of the directive and, second, relate to the ‘general level of protection’ afforded to the workers concerned. Specifically, the condition relating to the ‘implementation’ of Directive 2003/88 covers all national implementing measures designed to ensure the attainment of the objective pursued by the directive. On the other hand, legislation cannot be regarded as conflicting with Article 23 of that directive if the reduction it entails is in no way connected to the implementation of the directive, that is to say, if the reduction were justified not by the need to implement the directive but by the need to encourage another objective. (see paras 80, 81)

Although a reduction in the number of days of annual leave is not in itself sufficient to conclude that the right to annual leave guaranteed by Article 31(2) of the Charter of Fundamental Rights of the European Union has been adversely affected, that is not the case as regards Article 6 of Annex X to the Staff Regulations, which significantly reduces the length of leave of officials and other staff of the European Union serving in third countries, decreasing it from 42 to 24 days in the space of 3 years. That reduction cannot be regarded as consistent with the principle, set out in Article 31(2) of the Charter, of promoting the improvement of the living and working conditions of the persons concerned. In that regard, the fact that the number of days of annual leave determined by Article 6 of Annex X to the Staff Regulations remains higher than the minimum required by Article 7 of Directive 2003/88, concerning certain aspects of the organisation of working time, is not sufficient to conclude that that article does not infringe the right to annual leave. (see paras 89, 90)