JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (First Chamber)

30 November 2010

Case F-97/09

Christine Taillard

v

European Parliament

(Civil service — Officials — Successive sick leave — Arbitration — Finding that the applicant was able to work — Refusal of new duly issued medical certificate — No medical examination — Sick leave deducted from annual leave — Not permissible — Action for annulment and damages)

Application: brought under Articles 236 EC and 152 EA, in which Ms Taillard seeks, in particular, annulment of the Parliament’s decision of 15 January 2009 refusing a medical certificate attesting that she was unfit for work for four days and deducting four days from her annual leave, as well as compensation for the damage allegedly suffered.

Held: The Parliament’s decision of 15 January 2009 by which the Parliament refused to accept the medical certificate of 5 January 2009 and deducted the applicant’s absence of 6 to 9 January 2009 from her annual leave is annulled. The remainder of the action is dismissed. The Parliament is ordered to bear its own costs and to pay those incurred by the applicant.

Summary

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

(Staff Regulations, Art. 25)

2. Officials — Sick leave — Evidence of illness — Production of a medical certificate — Presumption that absence is lawful

(Staff Regulations, Art. 59)

3. Officials — Sick leave — Evidence of illness — Production of a medical certificate — Refused without a medical examination — Not permissible

(Staff Regulations, Arts 59(1) and (3))

4. Officials — Obligation of administration to provide assistance — Implementation

(Staff Regulations, Art. 24)

1. The purpose of the duty to state the grounds for a decision adversely affecting an official laid down in Article 25 of the Staff Regulations is to enable the Courts of the Union to review the legality of the decision and to give sufficient information to the party concerned so that he may know whether the decision is valid or whether it is defective so that he may challenge its legality. That requirement is satisfied when the measure against which an action may be brought has been adopted in circumstances known to the official concerned, which enable him to apprehend the scope of a measure taken concerning him. In order to determine whether the requirement to state grounds laid down in the Staff Regulations has been satisfied, it is desirable to take into consideration not only the documents giving notice of the decision but also the circumstances in which that decision was taken and brought to the knowledge of the official concerned. In that respect, it must be considered, in particular, whether the official concerned was already in possession of the information on which the institution based its decision.

(see para. 33)

See:

T-80/92 Turner v Commission [1993] ECR II-1465, para. 62; T-20/96 Pascall v Commission [1997] ECR-SC I-A-361 and II-977, para. 44; T-130/96 Aquilino v Council [1998] ECR-SC I-A-351 and II-1017, para. 45

F-80/08 Wenig v Commission [2009] ECR-SC I-A-1-479 and II-A-1-2609, para. 41

2. According to Article 59 of the Staff Regulations, where an official has an illness or accident which prevents him from carrying out his duties, he must notify his institution of his incapacity as soon as possible while at the same time stating his current address, and produce a medical certificate if he is absent for more than three days. The administration may refuse to accept such a medical certificate as valid and find that the absence of the official concerned is unauthorised only if it has subjected him beforehand to a medical examination, the findings of which take effect for administrative purposes only as from the date of that examination.

Article 59 of the Staff Regulations, while not giving the administration the power to refuse to take account of a medical certificate, even if that certificate does not mention the medical reasons why the official concerned is incapable of working, allows the administration the option of requiring the official to undergo an examination by a doctor of his own choosing.

(see paras 50-51)

See:

C-18/91 P V. v Parliament [1992] ECR I-3997, paras 33 and 34

T-527/93 O v Commission [1995] ECR-SC I-A-9 and II-29, para. 36; T-135/95 Z v Commission [1996] ECR-SC I-A-519 and II-1413, para. 32; T-29/96 Schoch v Parliament [1997] ECR-SC I-A-219 and II-635, para. 38

3. It is clear from Article 59(3) of the Staff Regulations that an official’s absence because of sickness may be deducted from his annual leave only if the institution has duly found his absence to be unauthorised under the conditions laid down in Article 59(1).

A decision refusing a medical certificate justifying the absence of an official is therefore unlawful where he has not been subjected to a medical examination in respect of the period indicated in that certificate, regardless of the fact that he was the subject of medical arbitration relating to a period immediately beforehand.

Even if the medical certificate does not refer to a new disorder or a worsening of the disorder for which the official concerned underwent arbitration and was declared fit for work, it is still possible that the official’s state of health is different from that established in the arbitration and that he is unfit for work for a specified short period, even though that unfitness is caused by the same disorder as that examined in the arbitration or by a deterioration in his state of health which only a doctor may determine.

(see paras 48, 53, 57)

See:

F-106/05 T v Commission [2008] ECR-SC I-A-1-419 and II-A-1-2315, para. 116

4. It is, as a rule, for the official concerned to submit a request for assistance under Article 24 of the Staff Regulations to his institution. In the absence of exceptional circumstances it is not incumbent on the institution to provide assistance spontaneously to the requester. Only exceptional circumstances may oblige the institution to provide specific assistance not in response to a request from the individual concerned but on its own initiative.

(see para. 65)

See:

229/84 Sommerlatte v Commission [1986] ECR 1805, para. 20

F-91/05 Frankinand Others v Commission [2006] ECR-SC I-A-1-25 and II-A-1-83, paras 23 and 24; judgment of 13 January 2010 in F-124/05 and F-96/06 A and G v Commission, para. 217