JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

11 July 1997

Case T-29/96

Bernd Schoch

v

European Parliament

‛Officials — Compensation for leave not taken — Sick leave — Notice’

Full texl in French II-635

Application for:

the annulment of the decision of the European Parliament to refuse to pay to the applicant BFR 124120 as compensation for 19.5 days' leave allegedly not taken at the time of leaving the service following termination of his contract as a member of the temporary staff.

Decision:

Annulment.

Abstract of the Judgment

On 1 February 1993 the applicant was engaged under contract for an indeterminate period as a member of the temporary staff of the Group of the European Liberal, Democrat and Reform Party (ELDR Group) of the European Parliament.

The applicant was absent from work from 25 March 1994 due to illness.

By letter of 26 July 1994 the Chairman of the ELDR Group notified to the applicant the decision of the Bureau of the Group to terminate his contract as a result of changes to the ELDR Group following elections to the Parliament. The period of notice of three months, which ran from the date on which the letter was sent, was to end on 26 October 1994.

On 14 September 1994 counsel for the applicant had a meeting with the Vice-Chairman of the ELDR Group in which it was agreed that, irrespective of the applicant's administrative situation, he would be discharged from the obligation to perform his duties during the period of notice.

On 14 September 1994 the applicant, through his counsel, put a number of questions to the Personnel Division of the Parliament concerning his administrative situation and in particular on the length of the period of notice, bearing in mind that he had not yet taken his annual leave for 1994 and that he was still on sick leave on the ground of his incapacity for work.

By letter of 23 September 1994 the Personnel Division of the Parliament informed counsel for the applicant that it had been decided to postpone until 31 December 1994 the termination of service of members of the temporary staff of political groups whose contracts were terminated following elections to the Parliament and that the three-month period of notice would thus take effect as from 1 October 1994. It also stated that leave not taken before leaving the service would not be added to the period of notice but would be paid at the time of leaving the service, in accordance with the second paragraph of Article 4 of Annex V to the Staff Regulations of Officials of the European Communities (the Staff Regulations), applicable to temporary staff by virtue of Article 16 of the Conditions of Employment of Other Servants of the European Communities (CEOS).

On 4 October 1994 counsel for the applicant asked the Personnel Division of the Parliament to confirm that the applicant ‘would be entitled, in addition to his remuneration until 31 December 1994, to payment in respect of the annual leave’ which he had not taken.

By letter of 17 February 1995 counsel for the applicant asked for payment of the remuneration relating to the period of leave due to him in respect of 1994.

On 8 March 1995 the Personnel Division of the Parliament replied that, ‘since Mr Schoch was employed by a political group, it is the group itself which administers its employees' leave’ and that the group had been asked to calculate the applicant's days of leave for 1994.

On 12 May 1995 the Personnel Division sent to counsel for the applicant a copy of the reply of the Secretary General of the ELDR Group, which was worded as follows:

‘... Mr Schoch has not been present in our group since his first medical certificate dated 22 March 1994. I should state that his last medical certificate covered the period until 15 July 1994.

At our meeting on 14 September 1994 with his lawyer, Mr Lucas Vogel, we explained to him that he would be exempt from the obligation to perform his duties during his period of notice.

... Mr Schoch's period of notice commenced on 1 October 1994... He was on leave de facto between 19 July 1994 and 30 September 1994, despite the fact that no application was submitted to the group, contrary to the Staff Regulations. Since Mr Schoch took two months and 15 days by way of leave, ... he is no longer entitled to any leave. ’

On 18 May 1995 counsel for the applicant asked the Personnel Division of the Parliament to review its decision.

By letter of 21 June 1995 the Personnel Division observed that the ELDR Group had ‘terminated Mr Schoch's contract by letter of 26 July 1994’ and that ‘his period of notice had started to run from that date’ but that, subsequently, the Parliament had decided that ‘the contracts of temporary staff would be terminated with effect from 31 December 1994 and that therefore, in all cases, periods of notice would begin to run as from 1 October 1994 instead of 26 July 1994’. Furthermore, the Personnel Division took the view that Mr Schoch had used up his leave before 1 October 1994 and thus before the three-month period of notice which is the maximum period provided for by the CEOS.

On 9 August 1995 the applicant lodged a complaint under Article 90(2) of the Staff Regulations against the Parliament's refusal to pay him the remuneration relating to the days of leave which he had not taken in 1994.

By decision of 26 February 1996 the Secretary General of the Parliament upheld in part the applicant's complaint on the ground that it had been found that there was a medical certificate covering the period from 16 July 1994 to 31 August 1994 in the applicant's file in the medical service of the Parliament at Brussels, but that the certificate had never been forwarded to the ELDR Group. The Secretary General pointed out, moreover, that neither the medical service or the ELDR Group was in possession of another medical certificate for the period from 1 to 30 September 1994. Accordingly, he considered that the applicant had defacto taken part of his annual leave during the period from 1 to 30 September 1994.

Substance

The single plea in law alleging infringement of Articles of the CEOS, Articles 57, 59 and 60 of the Staff Regulations and Articles I to 4 of Annex V to the Staff Regulations

The applicant maintains that his absence during September 1994 should be held to be justified on the ground that he was on sick leave during that period (paragraph 37).

Under Article 59 of the Staff Regulations, applicable to temporary staff by virtue of Article 16 of the CEOS, where an official claims to be suffering from an illness or to have suffered an accident rendering him unfit for work, he must notify his institution of his incapacity as soon as possible and at the same time state his present address and produce a medical certificate justifying his absence if he is absent for more than three days. Furthermore, the administration may refuse to accept such a medical certificate as valid and find that the absence of the official concerned is unauthorized 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. The duty of the institutions to arrange a medical examination necessarily has as its corollary a duty on the part of the officials concerned, if Articles 59 and 60 of the Staff Regulations are not to be rendered ineffective, to submit to those institutions, as soon as possible, certificates showing with sufficient clarity and beyond all argument the incapacity which they may intend to invoke (paragraph 38).

See: T-135/95Z v Commission [1996] ECRSC II-1413, para. 32

The applicant did not adduce any evidence that he had forwarded, within the prescribed period, a medical certificate justifying his absence during September 1994 (paragraph 44).

Under the second part of his plea, the applicant submits that the criticism levelled at him that he did not forward a medical certificate justifying his absence during September 1994, made seven months after the absence, is too late to justify application of Article 60 of the Staff Regulations. It should be observed in this respect that, unlike the clear duty on the part of the official to send a medical certificate after his third day of absence, there is no provision in the Staff Regulations or the implementing regulations which imposes on the institution the obligation to inform, within a specific period, the official or the servant concerned that it has not received a medical certificate justifying his or her absence. Furthermore, the Parliament did not allow, in the present case, an unreasonable period of time to lapse before deducting, pursuant to Article 60 of the Staff Regulations, the applicant's unauthorized absence from his annual leave, nor did it fail in its duty to have regard for the interests of officials or infringe the principle of the protection of legitimate expectations (paragraph 46).

Under the third branch of his plea, the applicant submits that his absence must be regarded as justified by the decision of 14 September 1994 of the ELDR Group not to give him any more work and to exempt him from his obligation to perform his duties during the period of notice (paragraph 48).

The decision of the Bureau of the ELDR Group to terminate the applicant's contract with a three-month period of notice, communicated to the applicant by letter of 26 July 1994, was not coupled with any exemption from his obligation to perform his duties during the period of notice and cannot therefore have had the effect of justifying his absence as from 26 July 1994 (paragraph 50).

At the meeting of 14 September 1994 the Vice-Chairman of the ELDR Group informed counsel for the applicant that he discharged the applicant from his obligation to perform his duties during the period of notice. It follows that, from that date and within the limits specified below, the applicant's absence cannot be regarded as improper (paragraph 51).

The applicant was informed by letter of 23 September 1994 from the Head of the Personnel Division that it had been decided to postpone the definitive termination of his contract until 31 December 1994 and that the three-month period of notice accorded to him would thus take effect on 1 October 1994. That decision of 23 September 1994 cannot have any retroactive effect, since, if it did, it would infringe the principle of the protection of legitimate expectations. It follows that the applicant, who had been exempted with effect from 14 September 1994 from his obligation to perform his duties, cannot subsequently be regarded as having been absent without authorization between 14 and 23 September 1994 (paragraph 52).

Operative part:

The decision of the Parliament of 26 February 1996 is annulled in so far as it holds that the applicant's absence was unauthorized during the period between 14 and 23 September 1994.

The Parliament shall pay to Mr Schoch compensation corresponding to nine days of leave not taken, the amount to be determined in accordance with the second paragraph of Article 4 of Annex V to the Staff Regulations. That amount shall be paid together with interest for late payment at the rate of 8% per annum from 8 March 1996 until the date of actual payment.

The remainder of the application is dismissed.