VIEW OF ADVOCATE GENERAL

KOKOTT

delivered on 11 June 2013 ( 1 )

Case C‑579/12 RX‑II

European Commission v Guido Strack

‛Review — Civil service — Officials — Leave — Carry-over of days of annual leave not taken because of illness — Article 1e(2) of the Staff Regulations — Article 4 of Annex V to the Staff Regulations — Directive 2003/88/EC — Article 31(2) of the Charter of Fundamental Rights of the European Union — Adverse effect on the unity or consistency of European Union law’

I – Introduction

1. Are the minimum requirements recognised in European Union social law applicable in the same way to officials of the European institutions as to workers in general law? That is, in essence, the legal question which the Court has to decide in the present review proceedings.

2. This question arises in connection with the right to an annual period of paid leave. That right, which was put into effect first by Directive 93/104/EC ( 2 ) and then by Directive 2003/88/EC, ( 3 ) is among the general principles of European Union social law and is now laid down in Article 31(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’). ( 4 )

3. In the present case, the European Commission refused a request made by Mr Strack, a former official of that institution, to carry over to 2005 38.5 days of annual leave not taken in 2004 because of a long-term illness suffered by Mr Strack. In support of the contested decision, adopted on 15 March 2007, the Commission relied on a provision of the Staff Regulations of the European Union ( 5 ) according to which the amount of leave which may be carried over to the following year may not exceed 12 days where the reasons for which the annual leave could not be used up do not relate to the requirements of the service (first paragraph of Article 4 of Annex V to the Staff Regulations). As Mr Strack has now been granted retirement on grounds of invalidity, it must be ascertained whether he should receive financial compensation for the balance of his days of annual leave from 2004 in excess of the 12 days automatically carried over to 2005 (second paragraph of Article 4 of Annex V to the Staff Regulations).

4. In the light of the Commission’s refusal, Mr Strack took the matter to the European Union courts and was successful at first instance before the European Union Civil Service Tribunal (‘the Civil Service Tribunal’). ( 6 ) The Civil Service Tribunal held that Mr Strack should be permitted to carry over the days of annual leave not used up because of illness, even in excess of the 12 days automatically carried over, since the Commission was required to comply with the same minimum requirements as are applicable to workers in general law under Directive 2003/88, as interpreted by the Court in its Schultz-Hoff case-law. ( 7 )

5. However, the General Court of the European Union (‘the General Court’), hearing an appeal brought by the Commission, set aside the judgment of the Civil Service Tribunal and, ruling on the merits, dismissed the action brought by Mr Strack. ( 8 ) The judgment of the General Court is based primarily on the argument that Directive 2003/88 and the Schultz-Hoff case-law cannot be applied to the regime applicable to officials of the European institutions.

6. The Court had ruled in Schultz-Hoff and Others that Article 7(1) of Directive 2003/88 precludes national legislation or practices which provide that the right to paid annual leave is extinguished at the end of the leave year and/or of a carry-over period laid down by national law even where the worker has been on sick leave for the whole or part of the leave year and where his incapacity for work persisted until the end of his employment relationship, which was the reason why he could not exercise his right to paid annual leave. ( 9 ) It has confirmed this ruling, in essence, in subsequent judgments, adding nuances in the details. ( 10 )

7. On a proposal from the First Advocate General, the Reviewing Chamber of the Court of Justice decided to initiate review proceedings in respect of the judgment of the General Court ( 11 ) (second paragraph of Article 256(2) TFEU, Articles 62 and 62a of the Statute of the Court of Justice of the European Union and Article 193(4) of the Rules of Procedure of the Court of Justice). The object of that review was set out as follows: ‘The review shall concern the questions whether – having regard to the case-law of the Court of Justice relating to the entitlement to paid annual leave as a principle of European Union social law, which is also expressly affirmed in Article 31(2) of the [Charter] and is covered in particular by [Directive 2003/88], the judgment of the General Court ... affects the unity or consistency of European Union law inasmuch as the General Court, as an appeal court: — interpreted Article 1e(2) of the Staff Regulations ... to the effect that it does not include the requirements relating to the organisation of working time contained in Directive 2003/88, in particular, paid annual leave, and, — consequently, interpreted Article 4 of Annex V to those Regulations as implying that the right to carry over annual leave exceeding the limit laid down in that provision may be granted only where the official has been unable to take leave for reasons connected with his activity as an official and the duties he has thus been required to perform.’

8. This is the first time that review proceedings have concerned matters of substantive law in connection with fundamental rights recognised at EU level. Going well beyond the issue of carrying over days of leave, which may appear to be slightly technical at first sight, the guidance given by the Court on this subject is of fundamental importance to the development and practical implementation of European civil service law as a whole.

II – Legislative framework

A – The Charter

9. Under Article 31(2) of the Charter, ‘[e]very worker has the right ... to an annual period of paid leave’.

10. According to the Explanations relating to the Charter of Fundamental Rights, ( 12 ) that provision is based on Directive 93/104, Article 2 of the European Social Charter ( 13 ) and point 8 of the Community Charter of the Fundamental Social Rights of Workers. ( 14 )

B – The Staff Regulations

11. Under Article 1e(2) of the Staff Regulations, which forms part of the general provisions of those Regulations: ‘Officials in active employment shall be accorded working conditions complying with appropriate health and safety standards at least equivalent to the minimum requirements applicable under measures adopted in these areas pursuant to the Treaties.’

12. Under Title IV, Chapter 2 of the Staff Regulations, which relates to leave, the first paragraph of Article 57 provides: ‘Officials shall be entitled to annual leave of not less than 24 working days nor more than 30 working days per calendar year, in accordance with rules to be laid down by common accord of the institutions [of the Union], after consulting the Staff Regulations Committee.’

13. Article 4 of Annex V to the Staff Regulations, ( 15 ) which is one of the provisions governing leave, stipulates: ‘Where an official, for reasons other than the requirements of the service, has not used up all his annual leave before the end of the current calendar year, the amount of leave which may be carried over to the following year shall not exceed 12 days. Where an official at the time of leaving the service has not used up all his annual leave, he shall be paid compensation equal to one thirtieth of his monthly remuneration at the time of leaving the service for each day’s leave due to him. ...’

14. A circular of Directorate-General ‘Personnel and administration’, published in Administrative Notices No 66‑2002 of 2 August 2002, states: ‘Where the number of days that you have not taken is greater than [12], however, leave in excess of these [12] days can be carried over only if you can show that you were unable to take them during the current calendar year because of necessities of the service.’

15. That circular was replaced, with effect from 1 May 2004, by a Commission Decision of 28 April 2004 establishing implementing provisions in relation to leave, ( 16 ) which provide, inter alia: ‘Carry-over of more than 12 days is authorised only if it has been established that the staff member has been unable to take them during the current calendar year for reasons attributable to the needs of the service (to be expressly substantiated) and is added to the entitlements for the following calendar year after decision by the human resources manager; ... No carry-over in excess of 12 days is authorised if the leave days have not been taken for reasons other than the needs of the service ([for example] for health reasons: illness, accident, recovery of annual leave following an accident or illness during annual leave, maternity leave, adoption leave, parental leave, family leave, leave on personal grounds, unpaid leave, levee for military service, etc.); ...’

16. It also follows from conclusion No 53A/70 of the Heads of Administration of 9 January 1970 that the amount of leave carried over must be limited to 12 days, even in the case of prolonged illness.

C – Directive 2003/88

17. Directive 2003/88 replaces Directive 93/104, and the references made to the latter directive are to be construed as references to the former directive. ( 17 )

18. According to recital 6 in the preamble to Directive 2003/88: ‘Account should be taken of the principles of the International Labour Organisation with regard to the organisation of working time, including those relating to night work.’

19. Article 1 of Directive 2003/88, entitled ‘Purpose and scope’, provides: ‘1. This Directive lays down minimum safety and health requirements for the organisation of working time. 2. This Directive applies to: (a) minimum periods of ... annual leave ... ...’

20. Article 7 of that directive, entitled ‘Annual leave’, reads as follows: ‘1. 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 granting of, such leave laid down by national legislation and/or practice. 2. The minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated.’

III – Analysis

21. In accordance with the framework established by the Reviewing Chamber in its decision initiating proceedings, ( 18 ) my analysis of the judgment under review will essentially deal with the question whether the General Court adversely affected the unity or consistency of European Union law by misinterpreting Article 1e(2) of the Staff Regulations and Article 4 of Annex V to the Staff Regulations with regard to the carry-over of annual leave not taken because of the long-term illness of the person concerned.

22. At the outset, it is necessary to reject the argument put forward by the Commission and by the Council of the European Union that no adverse effect on the unity or consistency of European Union law can be found in the present case on the ground that the General Court did not apply ‘cross-cutting rules’, but provisions of the Staff Regulations which are not applicable at all in other areas of EU law.

23. If the argument made by these two institutions were accepted, the review proceedings would be likely to be rendered meaningless. It would seem that the Commission and the Council have misunderstood the raison d’être of these proceedings. The risk of the unity or consistency of European Union law being adversely affected may arise even in relation to technical provisions which form part of special legislation where they are interpreted and applied by the General Court in a manner that makes them incompatible with the legislation applicable in other areas of EU law or with cross-cutting principles of EU law.

24. It is with this in mind that I will first examine whether the judgment under review is vitiated by errors in law as regards the rules of the Staff Regulations applicable to annual leave (section A below), before addressing the question whether those possible errors adversely affect the unity or consistency of European Union law (section B below).

A – Errors in law committed by the General Court

25. The parties and the institutions which submitted observations to the Court disagree profoundly on whether the judgment under review is vitiated by errors in law with regard to the right to an annual period of paid leave. Mr Strack claims that the General Court committed major errors in law in refusing to apply the requirements of Article 7 of Directive 2003/88, as interpreted by the Schultz-Hoff case-law, in the context of Article 1e(2) of the Staff Regulations and Article 4 of Annex V to those Regulations. The Commission and the Council put forward the diametrically opposed view and employ essentially identical arguments to defend the judgment under review delivered by the General Court.

1. The interpretation of Article 1e(2) of the Staff Regulations: incorporation of the minimum requirements of Directive 2003/88

26. Under Article 1e(2) of the Staff Regulations, ‘[o]fficials in active employment shall be accorded working conditions complying with appropriate health and safety standards at least equivalent to the minimum requirements applicable under measures adopted in these areas pursuant to the Treaties’.

27. Unlike the Civil Service Tribunal, the General Court, in its capacity as court of second instance, interpreted that provision as not covering the requirements governing paid annual leave as laid down in Article 7 of Directive 2003/88 and interpreted by the Schultz-Hoff case-law. ( 19 )

28. In doing so, the General Court gave an excessively strict reading of Article 1e(2) of the Staff Regulations which is not really persuasive.

29. It is expressly stated in Article 1(1) and in the preamble to Directive 2003/88 ( 20 ) that the purpose of the directive is to lay down ‘minimum safety and health requirements’ for the organisation of working time. The purpose of Directive 2003/88 is therefore fully consistent with the purpose of Article 1e(2) of the Staff Regulations, which also refers – in almost identical terms – to ‘minimum requirements’ in the field of ‘health and safety standards’. In the light of the wording of these two provisions, it seems to me that it can hardly be claimed that Directive 2003/88, which puts into effect, inter alia, the right to an annual period of paid leave, is not covered by Article 1e(2) of the Staff Regulations.

30. Contrary to the assertions made by the General Court ( 21 ) and by the Commission and the Council, the scope of Article 1e(2) of the Staff Regulations cannot be limited solely to minimum technical standards for the protection of the health and safety of workers in their workplace which are not regulated by the other provisions of the Staff Regulations. ( 22 ) Such an interpretation would ignore the fact that Article 1e is part of the general provisions of the Staff Regulations, which are applicable across all areas of European civil service law and which cannot therefore be given a strict interpretation.

31. Furthermore, the arguments put forward by the Commission regarding the origin of Article 1e of the Staff Regulations by no means support a strict interpretation of that provision. Neither the initial Commission proposal ( 23 ) nor the version of Article 1e approved by the ‘Conciliation Committee’ ( 24 ) contains clear and precise indications to the effect that only technical health and safety standards, or only areas not regulated by other parts of the Staff Regulations, are covered by that new provision.

32. It is true that the German version of the initial Commission proposal makes reference to ‘health and safety standards in the workplace’. ( 25 ) However, even assuming that it might demonstrate any intention to exclude the minimum requirements for the organisation of working time, that addition is absent from the other language versions of the Commission proposal that I have consulted. ( 26 ) That addition in a single language version of the proposal for a regulation therefore seems irrelevant for the purposes of reliably determining the intention of the Community legislature at the time, especially since the final version of Article 1e(2) of the Staff Regulations as adopted by the Council ( 27 ) no longer contains any reference to the ‘workplace’, even in the German version.

33. The Commission also cannot rely on Article 31 of the Charter to justify a strict interpretation of Article 1e(2) of the Staff Regulations. It is true that Article 31 of the Charter contains two distinct paragraphs, only the first of which expressly deals with the health and safety of workers, whilst the second, which is dedicated to working hours and paid leave, does not explicitly mention health and safety aspects. Nevertheless, that second paragraph also concerns the safety and the health of workers within the meaning of Directive 2003/88, formerly Directive 93/104. Article 31(2) of the Charter is based, inter alia, on that latter directive, as is clear from the Explanations relating to the Charter. ( 28 ) The purpose of that directive is specifically to lay down minimum safety and health requirements. ( 29 )

34. The Commission’s argument, which is taken up by the General Court in the judgment under review, ( 30 ) that the ‘incorporation’ in the Staff Regulations of the minimum requirements contained in Directive 2003/88 runs counter to the Union legislature’s autonomy with regard to the civil service, as enshrined in Article 336 TFEU, is equally unconvincing. As Mr Strack rightly stated, it is precisely by exercising that legislative autonomy that the Council inserted into the Staff Regulations a general provision, namely Article 1e(2), which introduces minimum health and safety standards – including those in Directive 2003/88 – into European civil service law.

35. Taking into consideration Directive 2003/88 in a case like the present one does not therefore impair the autonomy of the legislature in any way, but is in keeping with the letter and spirit of a new clause which it chose, itself, to insert into the Staff Regulations. Whilst it is true that the minimum requirements contained in the EU employment law directives are addressed first and foremost to the Member States and are not automatically applicable to the European Union institutions, ( 31 ) the provisions of Directive 2003/88 have in fact become applicable to the European civil service by virtue of Article 1e(2) of the Staff Regulations.

36. All in all, I therefore take the view that Article 1e(2) of the Staff Regulations may and must be interpreted as covering the requirements relating to the organisation of working time set out in Directive 2003/88 and, in particular, paid annual leave. By ruling to the contrary, the General Court vitiated the judgment under review by an error in law.

2. The interpretation of Article 4 of Annex V to the Staff Regulations: carry-over of annual leave not taken because of illness

37. Under the first paragraph of Article 4 of Annex V to the Staff Regulations, the amount of leave which may be carried over to the following year may not exceed 12 days where an official, for reasons other than the requirements of the service, has not used up all his annual leave before the end of the current calendar year.

38. Unlike the Civil Service Tribunal, the General Court, in its capacity as court of second instance, interpreted that provision as implying that the right to carry over annual leave exceeding the limit of 12 days may be granted only where the official has been unable to take leave for reasons connected with his activity as an official and the duties he has thus been required to perform. According to the General Court, this rules out any days of leave in excess of the 12-day regulatory limit being carried over where those days of leave could not be taken on account of a long-term illness suffered by the official concerned. ( 32 )

39. For reasons I will set out below, that interpretation which the General Court gives to the first paragraph of Article 4 of Annex V to the Staff Regulations seems excessively strict and has little regard to the minimum requirements relating to annual leave under Article 7 of Directive 2003/88, read in the light of the Schultz-Hoff case-law.

40. It would seem that the interpretation adopted by the General Court, which is, moreover, vigorously supported by the Commission and the Council, can be based, at first sight at least, on the wording of the first paragraph of Article 4 of Annex V to the Staff Regulations. The words of that provision rule out any leave being carried over beyond the 12-day regulatory limit unless such carry-over can be justified by reasons connected with the requirements of the service, with the result that carrying over leave not taken for other reasons, including illness, would appear, a priori, to be permissible only within the 12-day limit.

41. However, as the Court has held in its case-law, in interpreting a provision of EU law, it is necessary to consider not only its wording, but also the context in which it occurs and the objectives pursued by the rules of which it is part. ( 33 )

42. First of all, with regard to the regulatory context in which Article 4 of Annex V to the Staff Regulations occurs, consideration must be given to the general provisions of the Staff Regulations and, more specifically, Article 1e(2) of those Regulations. As I have just mentioned, ( 34 ) that provision makes applicable to the European civil service, inter alia, the minimum requirements contained in Directive 2003/88 for the organisation of working time, including those relating to paid annual leave (Article 7 of Directive 2003/88).

43. Second, as regards the objectives pursued by the Staff Regulations, it should be stated that the reform introduced by Regulation No 723/2004, which entered into force on 1 May 2004, was intended, inter alia, to modernise the Staff Regulations, which date from 1962, in terms of respect for the fundamental rights and principles recognised at EU level ( 35 ) and in terms of social protection. ( 36 ) Accordingly, in interpreting and applying all the provisions of the Staff Regulations, special attention must be given to a fundamental principle of EU social law like the right to an annual period of paid leave, which is enshrined, in particular, in Article 31(2) of the Charter and put into effect by Directive 2003/88 and the related case-law.

44. Consequently, both the objectives pursued by the Staff Regulations and the regulatory context in which Article 4 of Annex V to the Regulations occurs suggest that consideration should be given to the minimum requirements under Directive 2003/88, and under Article 7 in particular, as interpreted by the Schultz-Hoff case-law and incorporated in the Staff Regulations by Article 1e(2) thereof.

45. The objection cannot be raised that Article 4 of Annex V to the Staff Regulations contains a lex specialis which prevails over Article 1e(2) of the Staff Regulations. Contrary to what the Commission and the Council appear to be claiming, the Court has never ruled that all the provisions contained in the annexes to the Staff Regulations must necessarily prevail over the general provisions of those regulations. Although it is true that the Court has held that the provisions of the Staff Regulations and of its annexes have the same rank, ( 37 ) the annexes were recognised as having the character of lex specialis only in so far as they implemented specific provisions of the Staff Regulations. ( 38 ) However, that is not the relationship between Article 1e(2) of the Staff Regulations and Article 4 of Annex V to the Staff Regulations. It is true that the provisions governing ‘leave’ contained in Annex V implement Title IV, Chapter 2 of the Staff Regulations, in particular Article 57, but Annex V does not contain any implementing measure for Article 1e of the Staff Regulations.

46. Even assuming that Article 4 of Annex V to the Staff Regulations may be considered to contain more specific rules than Article 1e(2) of the Staff Regulations, the interpretation and application of those rules must nevertheless take into account the requirement of a ‘proper balance’ between each of those provisions of those regulations.

47. Article 1e(2) of the Staff Regulations establishes a principle which is applicable in all the areas governed by the Staff Regulations. It follows that the minimum health and safety requirements to which it refers – in particular those in Article 7 of Directive 2003/88, as interpreted by the Schultz-Hoff case-law – must be duly taken into account in interpreting and applying all the provisions of the Staff Regulations, including those in Annex V.

48. This is the case a fortiori because Article 1e of the Staff Regulations is more recent than Article 4 of Annex V to the Staff Regulations, with the result that it can be regarded as a lex posterior. The new principles recently introduced into the Staff Regulations by the legislature by virtue of Article 1e cannot therefore be disregarded in interpreting and applying Article 4 of Annex V to the Staff Regulations.

49. This does not mean that the rule of not carrying over annual leave entitlements laid down in the first paragraph of Article 4 of Annex V to the Staff Regulations would now lose its effectiveness. It is only in the case of the long‑term illness of the official concerned that the minimum requirements of Directive 2003/88, as interpreted by the Schultz-Hoff case-law and incorporated into the Staff Regulations by Article 1e(2) of those regulations, call for a certain flexibility to be applied to that rule.

50. Read in the light of Article 7 of Directive 2003/88 and the Schultz-Hoff case-law (applicable to the European civil service under Article 1e(2) of the Staff Regulations), Article 4 of Annex V to the Staff Regulations must be understood to the effect that it does not prohibit days of annual leave in excess of the 12-day regulatory limit being carried over where a long-term illness has prevented the official concerned from using up his annual leave entitlements.

51. Contrary to the assertions made by the General Court in the judgment under review, as well as by the Commission and the Council, the interpretation of Article 4 of Annex V to the Staff Regulations which I have just explained in point 50 above is not an interpretation contra legem. ( 39 ) On the contrary, it would seem that that interpretation is the only one which is fully consistent not only with the wording, but also with the regulatory context in which Article 4 of Annex V to the Staff Regulations occurs and the objectives pursued by the rules in question.

52. The issue of leave entitlements not used up because of illness can be addressed only by means of a flexible interpretation of the prohibition on carrying over contained in the first paragraph of Article 4 of Annex V to the Staff Regulations, otherwise the essence of the minimum requirements under Article 1e(2) of the Staff Regulations, in connection with Article 7 of Directive 2003/88, as interpreted by the Schultz-Hoff case-law, will be impaired: — either the view is taken, in line with that of the Civil Service Tribunal, ( 40 ) that carrying over leave entitlements not used up because of illness is not covered at all by Article 4 of Annex V to the Staff Regulations, — or incapacity for work subject to production of a medical certificate is treated in the same way as ‘requirements of the service’ which justify the carry-over of days of leave not taken.

53. The first possible interpretation (see above, point 52, first indent) is based on the idea that the prohibition on carrying over to the following year more than 12 days of annual leave ‘for reasons other than the requirements of the service’ is itself open to interpretation. It is not inconceivable for that prohibition to be given a strict interpretation and to be understood as simply limiting the days of annual leave which may be carried over for purely personal reasons, at the discretion of each official, as opposed to the requirements of the service, which are determined by his superiors. However, illness is a circumstance which is subject to neither the discretion of the official concerned nor the choices made by his superiors.

54. The second possible interpretation (see above, point 52, second indent) is based on the idea that it would be not only contrary to the rules in force, ( 41 ) but also contrary to the interest of the service, to require an official to work or to take his annual leave when his state of health prevents him from achieving the aims of either activity. If it is contrary to the interest of the service for an ill official to take his annual leave, he cannot be refused the right to carry over leave entitlements not used up because of his illness.

55. All things considered, I therefore take the view that Article 4 of Annex V to the Staff Regulations may and must be interpreted to the effect that it does not prohibit days of annual leave in excess of the 12-day regulatory limit being carried over where a long-term illness has prevented the official concerned from using up his annual leave entitlements. By ruling to the contrary, the General Court vitiated the judgment under review by an error in law.

3. Interim conclusion

56. By refusing to take into account the minimum requirements governing paid annual leave under Article 7 of Directive 2003/88, read in the light of the Schultz-Hoff case-law, the General Court committed a twofold error in law. Its decision is based not only on a misinterpretation of Article 1e(2) of the Staff Regulations, but also on a misreading of Article 4 of Annex V to the Staff Regulations.

B – Adverse effect on the unity or consistency of European Union law

57. As the judgment under review is vitiated by two errors in law relating to the interpretation and application of Article 1e(2) of the Staff Regulations and of Article 4 of Annex V to the Staff Regulations, it should be examined whether and, if appropriate, to what extent that judgment adversely affects the unity or consistency of European Union law.

1. The four criteria employed by the Court in establishing whether the unity or consistency of European Union law is adversely affected

58. In the two review judgments which it has delivered to date, the Court has focused its attention on four aspects when it has evaluated whether a decision of the General Court adversely affects the unity or consistency of European Union law, adopting an overall assessment of those aspects, taken as a whole: — the fact that the General Court departed from the established case-law of the Court of Justice; ( 42 ) — the fact that the decision under review could constitute a precedent for future cases; ( 43 ) — the fact that the principles misinterpreted by the General Court occupy an important position in the legal order of the European Union, ( 44 ) which may be the case, inter alia, where those principles are guaranteed by the Charter; ( 45 ) — the fact that the legal rule in question does not pertain solely to the law relating to the employment of European Union officials but is applicable regardless of the matter at issue. ( 46 )

59. Whilst it is true that these four considerations ‘are neither minimal nor exhaustive’, ( 47 ) they are nevertheless sufficient to enable the Court to find that the unity and consistency of European Union law is adversely affected in the present case, as I will explain below.

a) The first and second criteria

60. As regards the first two criteria, first of all, it must be stated that the General Court departed from the established case-law of the Court of Justice in refusing to apply to the case of Mr Strack the principles outlined in Schultz-Hoff and Others. ( 48 ) The judgment under review thus creates a risk of a divergence in the case-law of the European Union courts regarding paid leave, depending on whether workers in general law or workers in the European civil service are concerned.

61. The judgment under review could also constitute a precedent for future cases since, if confirmed, it would undoubtedly become the leading decision for a new line of case-law on the subject of paid leave in the European civil service.

62. The Commission and the Council object that it is not for the Court of Justice, in the context of review proceedings, to rule on the merits of the General Court’s development of its own case-law when acting in its appellate capacity. However, this argument would not appear to be relevant in the present case.

63. It is true that the Court has stated that it is now solely for the Civil Service Tribunal and the General Court of the European Union to develop the case-law in matters relating to the civil service; in addition, the fact that the Court of Justice has not yet ruled on a point of law is, in itself, not sufficient to justify a review. ( 49 ) However, this does not mean that the Civil Service Tribunal and the General Court have been given ‘carte blanche’ by the Court to develop the case-law in matters relating to the civil service as they wish without concern for the compatibility of that case-law with other areas of EU law and, in particular, with its leading principles. The Court took care to state that it continued to have jurisdiction, in review proceedings, to prevent the decisions of the General Court in matters relating to the civil service adversely affecting the unity or consistency of European Union law. ( 50 )

b) The third and fourth criteria

64. As far as the third and fourth criteria are concerned, it should be stressed that the errors in law which the General Court committed in the judgment under review are not limited to a misinterpretation and a misapplication of two technical provisions of the Staff Regulations, namely Article 1e(2) of the Staff Regulations and Article 4 of Annex V to those Regulations, and of a directive, in this case Directive 2003/88. As the Court has repeatedly ruled, the right to annual leave, as implemented, inter alia, by Directive 2003/88, must be regarded as a particularly important principle of European Union social law from which there can be no derogations ( 51 ) and which cannot be interpreted restrictively. ( 52 ) Its importance has increased, moreover, since the Charter incorporated that right on the basis of, inter alia, Directive 2003/88 (formerly Directive 93/104). ( 53 )

65. Evidently the right to an annual period of paid leave does not just fall within one particular area of EU law; far from that, it is applicable irrespective of the matter in question. Thus, by refusing to take account of the minimum requirements relating to paid leave under Directive 2003/88, as interpreted by the Schultz-Hoff case-law, the General Court disregarded a rule of EU law which has fundamental, cross-cutting character, contrary to the claims made by the Commission and the Council.

66. It is true that civil service law, including European civil service law, has some particularities which may call for derogations from general employment law and social law. ( 54 ) However, such derogations are permissible only if fully compatible with the principle of equal treatment, which is itself a general principle of European Union law enshrined in the Articles 20 and 21 of the Charter. ( 55 )

67. The principle of equal treatment requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified. ( 56 ) Furthermore, the elements which characterise different situations, and hence their comparability, must in particular be determined and assessed in the light of the subject-matter and purpose of the act which makes the distinction in question. The principles and objectives of the field to which the act relates must also be taken into account. ( 57 )

68. It follows that, in order to justify any departures of the rules applicable to officials from the fundamental principles of general law applicable to all workers, it is not possible simply to rely on an overall assessment of the professional status of an official, on the one hand, and of a worker in general law, on other. Any individual derogation must be based on a specific feature of the professional status of an official.

69. However, it is precisely with regard to paid leave that the situation of European officials seems comparable with the situation of workers in general law. It is not disputed that the purpose of entitlement to paid annual leave is to enable the worker to rest and to enjoy a period of relaxation and leisure, and that those objectives cannot be achieved when the person concerned is ill, ( 58 ) whether he is a worker in general law or an official, and whether or not his employer makes payments to him during his illness. I cannot therefore see any objective reason to justify the less favourable treatment of an official compared with a worker in general law as regards carrying over days of annual leave not taken because of long-term illness, as recognised by the Schultz-Hoff case-law.

c) Additional remarks

70. Of course, the Schultz-Hoff case-law is not immune to criticism, and the Commission, supported by the Council, did not fail to point this out. In particular, it highlighted the difficulties connected with the practical implementation of a system which permits, on a case-by-case basis, the carry-over of annual leave entitlements not used up, in excess of a fixed number of days automatically carried over. Furthermore, it stressed the potential economic cost of such a system of carrying over days of leave to the employer and – in the specific case of the European institutions – to the financial interests of the Union. ( 59 )

71. It would nevertheless appear that the present case does not lend itself to a reconsideration of the merits of the Schultz-Hoff case-law, especially since the objections raised by the Commission and the Council are not based on any particular feature of the European civil service. On the contrary, the same practical and economic problems are likely to arise in connection with days of leave being carried over for workers in general law. Furthermore, the European institutions should, by virtue of their size and their financial strength, be more able to tackle such problems than private small- or medium-sized undertakings.

72. Moreover, it is surprising to me, to say the least, that the Commission, in its capacity as an employer, is able to direct particularly severe criticisms at the solution adopted by the Court in Schultz-Hoff and Others ( 60 ) when it was precisely that institution that strongly proposed that the Court adopt that solution in connection with the interpretation of Directive 2003/88. ( 61 )

73. Depriving European officials of the full enjoyment of an important principle of social law which EU law none the less recognises for workers in general law, seems to be incompatible with the need to ensure the unity or consistency of European Union law.

d) Summary

74. In the light of the above statements, each of the four criteria developed by the Court for the purpose of finding that the unity or consistency of European Union law is adversely affected seems to be satisfied in the present case.

2. The distinction between the ‘unity’ and ‘consistency’ of Union law

75. It should be noted, moreover, that the provisions governing review proceedings, and in particular the second paragraph of Article 256(2) TFEU, do not contain any definition of the concepts of the ‘unity’ and ‘consistency’ of European Union law. In addition, thus far, case-law has not made a clear and precise delimitation of those two notions. It would seem, however, that it must be found that the unity of Union law is adversely affected, in particular, where the General Court has misconstrued rules or principles of EU law which have particular importance whereas the consistency of European Union law is adversely affected where the General Court has misconstrued existing case-law of the European Union courts. ( 62 )

76. In the present case, these elements are both present, as the General Court misconstrued the right to an annual period of paid leave as interpreted by the Court in its Schultz-Hoff case-law. It should therefore be found that the judgment under review adversely affected both the unity and the consistency of European Union law.

3. Interim conclusion

77. In the light of the foregoing considerations, I propose that the Court find that the judgment under review adversely affects the unity and consistency of European Union law.

IV – Consequences for the dispute between Mr Strack and the Commission

78. Theoretically, it would certainly be conceivable, in appropriate cases, for the Court simply to find that the unity or consistency of European Union law is adversely affected without setting aside the decision of the General Court at issue. However, the first paragraph of Article 62b of the Statute of the Court of Justice precludes such an approach, as the Court has held on two occasions. ( 63 ) The finding that the unity or consistency of European Union law is adversely affected requires the Court either to refer the case back to the General Court or itself to give final judgment in the matter.

79. The present case does not require either factual findings or additional legal discussions which might justify the case being referred back to the General Court. To take the words used in the second sentence of the first paragraph of Article 62b of the Statute of the Court of Justice, ‘having regard to the result of the review, the outcome of the proceedings flows from the findings of fact on which the decision of the General Court was based’.

80. In these circumstances, the Court should itself give final judgment in the matter. This implies, first, a decision on the outcome of the appeal brought by the Commission against the judgment of the Civil Service Tribunal (section A below) and, second, a decision on costs (section B below).

A – The dismissal of the appeal brought by the Commission

81. As I stated above, ( 64 ) the General Court’s decision is based on a misinterpretation of the second paragraph of Article 1e of the Staff Regulations and of Article 4 of Annex V to the Staff Regulations. In the light of the minimum requirements under Article 7 of Directive 2003/88, as interpreted by the Schultz-Hoff case-law, the solution adopted at first instance by the Civil Service Tribunal seems unobjectionable in law with the result that the appeal brought by the Commission against the judgment of the Civil Service Tribunal cannot be successful. That appeal must therefore be dismissed.

82. The setting aside of the contested decision ( 65 ) made by the Civil Service Tribunal at first instance ( 66 ) will thus become final. Under the second paragraph of Article 4 of Annex V to the Staff Regulations, the Commission will then have to take a fresh decision on the compensation for the annual leave for 2004 not used up by Mr Strack, in accordance with Mr Strack’s claim and having due regard to the Schultz-Hoff case-law.

Additional remarks

83. The objection raised by the Commission to the effect that the precise content of the right to an annual period of paid leave is not sufficiently clear at this stage cannot be accepted. Whilst case-law has not yet clarified all its details, the Court has never left any doubt that that right precludes a categorical refusal of a request to carry over annual leave entitlements not used up because of long-term illness. ( 67 )

84. This is sufficient to resolve the dispute between Mr Strack and the Commission. Furthermore, the risk of an ‘unlimited carry-over of days of leave’ does not arise in the case of Mr Strack as he was granted retirement on grounds of invalidity from 2005 and therefore left active service in the course of the calendar year immediately following the year in which the leave entitlements at issue arose.

85. It should be noted in passing that the Union legislature remains free to amend either Directive 2003/88 or the Staff Regulations. In particular, provision may be made to limit the length of the carry-over of days of annual leave not taken because of illness, ( 68 ) and the arrangements for carrying over leave entitlements may vary depending on whether or not it is minimum annual leave. ( 69 )

86. However, any amendment to the applicable statutory rules cannot be introduced retroactively and new rules should require the appointing authority to take due account of the fact that the official concerned was prevented from using up his annual leave entitlements because of long-term illness.

87. Any categorical exclusion of carry-over of days of leave not taken because of illness, and any fixed limit on the number of days of leave – below the minimum annual leave – which may be carried over, because of illness, to the year immediately following the year in which the leave entitlements in question arose is incompatible with the current minimum requirements governing paid leave as laid down in Directive 2003/88. ( 70 )

B – Costs

88. Under Article 195(6) of the Rules of Procedure of the Court of Justice, where the decision of the General Court which is subject to review was given under Article 256(2) TFEU, the Court of Justice is to make a decision as to costs.

89. Whilst it is true that its Rules of Procedure do not provide for specific rules governing orders for costs in the case of a review procedure, the Court nevertheless should not be led systematically to order each participant in the review proceedings and each party to the dispute to bear its own costs. Admittedly, it opted for this solution in the two first judgments it delivered in review proceedings. ( 71 ) However, it would seem that the circumstances of the different cases which the Court may be required to hear and determine in the context of review proceedings call for the adoption of a diversified approach with regard to costs, drawing a distinction according to whether those costs relate to the review proceedings (see section 1 below) or to the appeal proceedings (see section 2 below).

1. The costs relating to the review proceedings

90. First, as regards the costs incurred by the parties to the dispute in the review proceedings, I consider that the apportionment of these costs cannot be detached completely from the positions taken by those parties and, above all, from the relevance and the success of the arguments they submitted to the Court. Even if the Court conducts the review only exceptionally and mainly in the interest of the law, it cannot be denied that the review proceedings have certain effects on the rights and obligations of those parties, for whom, in fact, it merely represents an extension of the dispute between them before the Civil Service Tribunal and before the General Court (see the first paragraph of Article 62b of the Statute of the Court of Justice).

91. Consequently, if in the present case the Court follows my proposals to take into consideration the minimum requirements under Directive 2003/88, as interpreted by the Schultz-Hoff case-law, it will be the Commission which has supported the losing position, whilst Mr Strack will have been successful in his submissions. In those circumstances, it would be fair and equitable to order the Commission to bear not only its own costs relating to the review proceedings but also those incurred by Mr Strack. I cannot see any valid reason to order Mr Strack to bear his own costs when it was the Commission that brought before the General Court the appeal whose handling subsequently led the Court of Justice to initiate review proceedings. Moreover, to order Mr Strack to bear his own costs relating to the review proceedings would be likely to reduce considerably the economic benefit which he would derive from the financial compensation for the balance of his days of leave for 2004, a sum roughly equal to a month’s salary. ( 72 )

92. The Council, which participated in the review proceedings not as a party to the dispute but as an institution within the meaning of Article 23 and the second paragraph of Article 62a of the Statute of the Court of Justice, should bear its own costs.

2. The costs relating to the appeal proceedings

93. Second, with regard to the costs relating to the appeal proceedings, the combined provisions of Articles 138(1) and 184(1) of the Rules of Procedure should be applied mutatis mutandis. It follows that the Commission, which will have been unsuccessful in its submissions relating to the appeal, will have to bear its own costs and the costs incurred by Mr Strack relating to the appeal, as applied for by him.

V – Conclusion

94. In the light of the above considerations, I propose that the Court should: (1) Declare that the judgment of the General Court of the European Union of 8 November 2012 in Case T‑268/11 P Commission v Strack adversely affects the unity and consistency of European Union law; (2) Set aside the judgment of the General Court of the European Union; (3) Dismiss the appeal brought by the European Commission against the judgment of the European Union Civil Service Tribunal of 15 March 2011 in Case F‑120/07 Strack v Commission; (4) Order the Council of the European Union to bear its own costs relating to the review proceedings and, as to the remainder, order the European Commission to bear both the costs relating to the appeal proceedings and the costs relating to the review proceedings.

( 1 ) Original language: French.

( 2 ) Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time (OJ 1993 L 307, p. 18).

( 3 ) Directive of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (OJ 2003 L 299, p. 9).

( 4 ) Joined Cases C-229/11 and C-230/11 Heimann and Toltschin, paragraph 22 and the case-law cited.

( 5 ) Also ‘the Staff Regulations’.

( 6 ) Case F-120/07 Strack v Commission [2011], ECR-SC I-A-1-0000 and II-A-1-0000, ‘the judgment of the Civil Service Tribunal’.

( 7 ) Joined Cases C-350/06 and C-520/06 Schultz-Hoff and Others [2009] ECR I-179; Case C-214/10 KHS [2011] ECR I-11757; Case C‑282/10 Dominguez [2012] ECR; Case C‑337/10 Neidel [2012] ECR; Case C‑78/11 ANGED [2012] ECR; and Heimann and Toltschin (cited in footnote 4), collectively ‘the Schultz-Hoff case-law’.

( 8 ) Judgment of 8 November 2012 in Case T-268/11 P Commission v Strack [2012] ECR (‘the judgment under review’).

( 9 ) Judgment cited in footnote 7, paragraph 49.

( 10 ) In so far as is relevant here, see, in particular, KHS and Dominguez, cited in footnote 7.

( 11 ) Decision of 11 December 2012 in Case C‑579/12 RX Review Commission v Strack.

( 12 ) OJ 2007 C 303, p. 17 (26).

( 13 ) Signed at Turin on 18 October 1961.

( 14 ) That Charter was adopted at the European Council meeting on 9 December 1989 in Strasbourg. It is reproduced in a Commission document of 2 October 1989 (COM(89) 471 final).

( 15 ) The German version of the first paragraph of that article was the subject of a corrigendum (OJ 2007 L 248, p. 26 in fine).

( 16 ) C(2004) 1597.

( 17 ) See Article 27(2) of Directive 2003/88.

( 18 ) Cited in point 7 and in footnote 11 of this View.

( 19 ) Judgment under review, in particular paragraphs 52 to 56.

( 20 ) See, in particular, recitals 1 and 4 in the preamble to Directive 2003/88.

( 21 ) Judgment under review, paragraph 53.

( 22 ) The examples mentioned by the Commission in this regard are as follows: fire safety, hazardous substances, ventilation and ergonomics.

( 23 ) Proposal for a Council Regulation amending the Staff Regulations of officials and the Conditions of Employment of other servants of the European Communities, presented by the Commission on 24 April 2002 (COM(2002) 213 final).

( 24 ) Council Document No 12957/03 of 26 September 2003, entitled ‘Approval of the outcome of the Conciliation Committee’ (see inter alia point 11).

( 25 ) In German: ‘Gesundheits- und Sicherheitsbedingungen am Arbeitsplatz’ (my emphasis).

( 26 ) Spanish, Danish, English, French, Italian, Dutch, Portuguese and Swedish versions.

( 27 ) Article 1e(2) of the Staff Regulations, as amended by Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004 amending the Staff Regulations of officials of the European Communities and the Conditions of Employment of other servants of the European Communities (OJ 2004 L 124, p. 1).

( 28 ) Those explanations, which are reproduced in point 10 of this View, were drawn up as a way of providing guidance in the interpretation of the Charter and must be given due regard by the courts of the Union and of the Member States (third subparagraph of Article 6(1) TEU in conjunction with Article 52(7) of the Charter).

( 29 ) See above, point 29 of this View.

( 30 ) Judgment under review, paragraph 53 in fine.

( 31 ) Case C-25/02 Rinke [2003] ECR I-8349, paragraph 24, and Case T-325/09 P Adjemian and Others v Commission [2011] ECR II-6515, paragraph 51.

( 32 ) Judgment under review, in particular paragraphs 54, 64 and 67.

( 33 ) Case 292/82 Merck [1983] ECR 3781, paragraph 12; Joined Cases C-402/07 and C-432/07 Sturgeon and Others [2009] ECR I-10923, paragraph 41; and Case C‑17/10 Toshiba Corporation and Others, paragraph 73.

( 34 ) See points 26 to 36 of this View.

( 35 ) See, inter alia, the new provisions inserted into the Staff Regulations by Articles 1d, 11a, 12a and 17a thereof, and recitals 14 and 16 in the preamble to Regulation No 723/2004.

( 36 ) Recital 9 in the preamble to Regulation No 723/2004.

( 37 ) Case C-40/10 Commission v Council [2010] ECR I-12043, paragraph 61.

( 38 ) See, to this effect, Case C-443/07 P Centeno Mediavilla and Others v Commission [2008] ECR I-10945, paragraph 105, and Commission v Council, cited in footnote 37, paragraphs 61 to 67.

( 39 ) The Commission refers to the judgments in Joined Cases C-378/07 to C-380/07 Angelidaki and Others [2009] ECR I-3071, paragraph 199, and Dominguez, cited in footnote 7, paragraph 25, which relate, however, only to the obligation to interpret national law in conformity with a directive.

( 40 ) See, to this effect, the judgment of the Civil Service Tribunal (paragraphs 72 and 74).

( 41 ) See Article 59 of the Staff Regulations, on the one hand, and Article 3 of Annex V to the Staff Regulations, on the other.

( 42 ) Case C-197/09 RX-II Review M v EMEA [2009] ECR I-12033, paragraph 63, and Case C‑334/12 RX‑II Review Arango Jaramillo and Others v EIB, paragraph 51.

( 43 ) Review M v EMEA, cited in footnote 42, paragraph 62, and Review Arango Jaramillo and Others v EIB, cited in footnote 42, paragraph 50.

( 44 ) Review M v EMEA, cited in footnote 42, paragraph 65, and Review Arango Jaramillo and Others v EIB, cited in footnote 42, paragraph 53.

( 45 ) Review Arango Jaramillo and Others v EIB, cited in footnote 42, paragraph 53.

( 46 ) Review M v EMEA, cited in footnote 42, paragraph 64, and Review Arango Jaramillo and Others v EIB, cited in footnote 42, paragraph 52.

( 47 ) These are the words used by Advocate General Mengozzi to describe the four criteria developed by the Court in point 70 of his View in Review Arango Jaramillo and Others v EIB, cited in footnote 42.

( 48 ) Cited in footnote 7.

( 49 ) Decision in Case C-17/11 RX Review Commission v Petrilli [2011] ECR I-299, paragraph 3.

( 50 ) Ibid.

( 51 ) Schultz-Hoff, cited in footnote 7, paragraphs 22 and 54; KHS, cited in footnote 7, paragraph 23; ANGED, cited in footnote 7, paragraph 16; Dominguez, cited in footnote 7, paragraph 16; and Heimann and Toltschin, cited in footnote 4, paragraph 22. It should also be noted that Article 7 of Directive 2003/88 is not among the provisions for which a derogation is possible under Article 17 of that directive.

( 52 ) ANGED, cited in footnote 7, paragraph 18, and Heimann and Toltschin, cited in footnote 4, paragraph 23.

( 53 ) See Article 31(2) of the Charter and the relevant explanations (cited in point 10 of this View), and KHS, cited in footnote 7, paragraph 37; Neidel, cited in footnote 7, paragraph 40; ANGED, cited in footnote 7, paragraph 17; and Heimann and Toltschin, cited in footnote 4, paragraph 22.

( 54 ) I am thinking of, among other things, the recruitment process for an official and the conditions under which his employment relationship is terminated.

( 55 ) Case C-550/07 P Akzo Nobel Chemicals and Akcros Chemicals v Commission and Others [2010] ECR I-8301, paragraph 54.

( 56 ) Case C-127/07 Arcelor Atlantique and Lorraine and Others [2008] ECR I-9895, paragraph 23, and Akzo Nobel Chemicals and Akcros Chemicals v Commission and Others, cited in footnote 55, paragraph 55.

( 57 ) Arcelor Atlantique and Lorraine and Others, cited in footnote 56, paragraphs 25 and 26. See also Case C-176/09 Luxembourg v Parliament and Council [2011] ECR I-3727, paragraph 32.

( 58 ) Schultz-Hoff and Others, paragraph 25; KHS, paragraph 31; and ANGED, paragraph 19, cited in footnote 7.

( 59 ) See also, on this latter aspect, the judgment under review (paragraph 50 in fine).

( 60 ) Cited in footnote 7.

( 61 ) See, inter alia, point 40 of the Report for the Hearing in Schultz-Hoff and Others (cited in footnote 7).

( 62 ) Review Arango Jaramillo and Others v EIB, cited in footnote 42, paragraphs 54 and 55 of the grounds and paragraph 1 of the operative part. See also point 76 of the View of Advocate General Mengozzi in that case.

( 63 ) Review M v EMEA, cited in footnote 42, paragraphs 68 and 69, and Review Arango Jaramillo and Others v EIB, cited in footnote 42, paragraphs 56 and 57.

( 64 ) Points 26 to 56 of this View.

( 65 ) It should be recalled that this is the Commission’s decision of 15 March 2007 rejecting Mr Strack’s request to carry over the balance of his days of leave for 2004 (see the judgment of the Civil Service Tribunal, paragraph 20).

( 66 ) Judgment of the Civil Service Tribunal, paragraph 79 of the grounds and paragraph 1 of the operative part.

( 67 ) Schultz-Hoff and Others, cited in footnote 7, in particular paragraphs 48 and 49.

( 68 ) KHS, in particular paragraphs 28, 29, 33, 34, 43 and 44, and Neidel, paragraphs 38 to 43, cited in footnote 7.

( 69 ) See, to this effect, Dominguez, cited in footnote 7, paragraphs 47 to 50.

( 70 ) See, to this effect, Schultz-Hoff and Others, cited in footnote 7, paragraphs 48, 49 and 52, and the case-law cited in footnotes 68 and 69 of this View.

( 71 ) Review M v EMEA, cited in footnote 42, paragraph 73, and Review Arango Jaramillo and Others v EIB, cited in footnote 42, paragraph 61.

( 72 ) More precisely, this is financial compensation for 26.5 days leave of 38.5 not taken in 2004 (the remaining 12 days having been automatically carried over to 2005). That compensation is to be calculated pursuant to the second paragraph of Article 4 of Annex V to the Staff Regulations.