JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(First Chamber)

7 July 2009

Case F-39/08

Giorgio Lebedef

v

Commission of the European Communities

(Civil service – Officials – Annual leave – Staff representation activities – Secondment on half time for union representation purposes – Activities in connection with representation as provided for in the Staff Regulations – Unauthorised absence – Deduction from annual leave entitlement – Article 60 of the Staff Regulations)

Application: brought under Articles 236 EC and 152 EA, in which Mr Lebedef seeks annulment of the decisions of 29 May, 20 June, 28 June and 6 July 2007 and also of the two decisions of 26 July 2007 and the decision of 2 August 2007, all of which concern in total a deduction of 32 days from his 2007 leave entitlement.

Held: The action is dismissed. The applicant is ordered to pay all the costs.

Summary

1. Officials – Representation – Staff Committee – Participation of officials or other servants not on secondment

2. Officials – Unauthorised absence – Ex post facto regularisation – Conditions

(Staff Regulations, Art. 60)

3. Officials – Representation – Staff Committee – Obligation to obtain prior permission for absence

(Staff Regulations, Art. 60)

4. Officials – Absence – Competence to monitor

1. It is neither possible nor desirable that staff representation should be provided solely by officials or other servants on secondment, whether for 50% or 100% of their working time. There is a positive interest in persons not on secondment assuming a part of the staff representation duties. However, the system which specifically provides for the grant of secondment to certain staff representatives implies that, in the case of officials or servants not on secondment, participation in staff representation activities should be occasional and, calculated on a six‑monthly or quarterly basis, cover a relatively limited percentage of working time.

While the precise delimitation of the ‘occasional’ nature of participation in staff representation and the precise delimitation of the percentage of time devoted to staff representation are by nature impossible and can be undertaken only on a case-by-case basis, to accept that an official or other servant not on secondment should devote virtually all, or indeed all, his working time to staff representation, and thus devote little, or indeed no, working time to the service to which he is assigned, would have the effect of distorting the system put in place by the various agreements concluded between the Commission and the trade unions and staff associations and, depending on the circumstances of the case, might be liable to constitute an abuse of right, which the Community judicature may be induced to penalise.

(see paras 49-50)

See:

T-222/95 Angelini v Commission [1997] ECR-SC I‑A‑491 and II‑1277, paras 35 and 36; T-57/96 Costantini v Commission [1997] ECR-SC I‑A‑495 and II‑1293, paras 28 and 29; T-95/98 DEP Gogos v Commission [2001] ECR-SC I‑A‑123 and II‑571, para. 24

2. Where an official has not sought prior permission for his absence or, at the very least, provided information in advance that he would be absent, an ex post facto confirmation validating his absence can apply only in the event of sickness or accident, under Article 60 of the Staff Regulations; in any event, even where such ex post facto confirmation is given, the competent administration must be able to retain a certain right of control and to assess the merits of an ex post facto regularisation of the absence deemed irregular.

(see para. 55)

3. While in certain circumstances practical difficulties or constraints imposed by confidentiality may prevent staff representatives from complying with the obligation to obtain prior permission from their immediate superior (or, at the very least, the obligation to inform their immediate superior in advance), as regards, in particular, the question of confidentiality, and apart from the fact that much information relating to staff representation activities is not confidential, notably the place and time of official meetings, and the details of those participating in them, and that the obligation to maintain confidentiality thus relates to only a part of those activities, it is always possible for a staff representative, even where such confidential data are present, to provide his immediate superior with general, non-confidential information, such as the approximate duration of a meeting.

Furthermore, a general and vague awareness of the official’s staff representation activities by the service to which he is assigned cannot count as prior information or, a fortiori, prior permission from the official’s immediate superior.

(see paras 57-58)

4. As regards an official belonging to two hierarchical structures, the first being that of the staff representation concerning his activities as a union representative and the second being that of the service to which he is assigned, while the staff representation is competent to monitor his absences in the context of his secondment for union purposes, the same does not apply with respect to his absences in relation to the time which he is required to devote to the service to which he is assigned, for which only that service is competent.

(see para. 59)

JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (First Chamber)

7 July 2009 ( )

(Civil service – Officials – Annual leave – Staff representation activities – Secondment on half time for union representation purposes – Activities in connection with representation as provided for in the Staff Regulations – Unauthorised absence – Deduction of annual leave entitlement – Article 60 of the Staff Regulations)

In Case F‑39/08,

ACTION under Articles 236 EC and 152 EA,

Giorgio Lebedef, an official of the Commission of the European Communities, residing in Senningerberg (Luxembourg), represented by F. Frabetti, lawyer,

applicant,

v

Commission of the European Communities, represented by G. Berscheid and K. Herrmann, acting as Agents,

defendant,

THE TRIBUNAL (First Chamber),

composed of S. Gervasoni, President, H. Kreppel and H. Tagaras (Rapporteur), Judges,

Registrar: R. Schiano, Administrator,

having regard to the written procedure and further to the hearing on 17 February 2009,

gives the following

Judgment

1 By application received by fax at the Registry of the Tribunal on 28 March 2008 (the original being lodged on 31 March 2008), the applicant seeks annulment of the decisions of 29 May, 20 June, 28 June and 6 July 2007 and also of the two decisions of 26 July 2007 and the decision of 2 August 2007, all of which concern in total a deduction of 32 days from his 2007 leave entitlement.

Legal context

Officials’ leave entitlement

2 Under the terms of the first paragraph of Article 57 of the Staff Regulations of Officials of the European Communities (‘the Staff Regulations’):

‘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 Communities, after consulting the Staff Regulations Committee.’

3 Article 59 of the Staff Regulations provides:

‘1. An official who provides evidence of being unable to carry out his duties by reason of illness or accident shall be entitled to sick leave.

The official concerned shall notify his institution of his incapacity as soon as possible and at the same time state his current address. He shall produce a medical certificate if he is absent for more than three days. This certificate must be sent on the fifth day of absence at the latest, as evidenced by the date as postmarked. Failing this, and unless failure to send the certificate is due to reasons beyond his control, the official’s absence shall be considered as unauthorised.

…

2. If, over a period of 12 months, an official is absent for up to three days because of sickness for a total of more than 12 days, he shall produce a medical certificate for any further absence because of sickness. His absence shall be considered to be unjustified as from the 13th day of absence on account of sickness without a medical certificate.

3. Without prejudice to the application of the rules on disciplinary proceedings, where appropriate, any absence considered to be unjustified under paragraphs 1 and 2 shall be deducted from the annual leave of the official concerned. In the event that the official has no outstanding leave entitlement, he shall lose the benefit of his remuneration for the corresponding period.

…’

4 According to the first paragraph of Article 60 of the Staff Regulations:

‘Except in case of sickness or accident, an official may not be absent without prior permission from his immediate superior. Without prejudice to any disciplinary measures that may apply, any unauthorised absence which is duly established shall be deducted from the annual leave of the official concerned. If he has used up his annual leave, he shall forfeit his remuneration for an equivalent period.’

Staff representation

5 Article 10c of the Staff Regulations provides:

‘Each institution may conclude agreements concerning its staff with its representative trade unions and staff associations. Such agreement may not entail amendment of the Staff Regulations or any budgetary commitments, nor may they affect the working of the institution concerned. The representative trade unions and staff associations which are signatories shall operate in each institution subject to the statutory powers of the Staff Committee.’

Rights of staff representatives

6 As regards the Staff Committee, the sixth paragraph of Article 1 of Annex II to the Staff Regulations provides:

‘The duties undertaken by members of the Staff Committee and by officials appointed by the Committee to organs set up under the Staff Regulations or by the institution shall be deemed to be part of their normal service in their institution. The fact of performing such duties shall in no way be prejudicial to the person concerned.’

7 The Framework Agreement on relations between the Commission of the European Communities and the trade unions and staff associations, which entered into force on 27 January 2006, for a period of 18 months, states in Article 1(2):

‘Membership of a trade union or staff association, participation in trade union activities or the holding of office in a trade union shall in no way adversely affect the position or career of an official.’

Resources made available for staff representation

8 Staff representation within the Commission has been the subject of a number of agreements between the institution and the trade unions and staff associations, also affecting the Staff Committee and concerning in particular the resources made available for staff representation.

9 In the ‘Agreement between [the] Vice-President [of the Commission] and the trade unions and staff associations’ of 4 April 2001, it is stated that the trade unions and staff associations undertake to allocate resources between the trade unions and staff associations, but also at the same time within the Central Staff Committee and the Local Staff Committees, on the basis of the representativeness of the trade unions and staff associations, taking local constraints into account. It was also envisaged that the allocation of resources would be regulated by a protocol between the trade unions and staff associations, co‑signed by the Directorate-General (DG) for Personnel and Administration. Last, it was agreed that the Commission would make available to the trade unions and staff associations 31.5 posts to be filled by secondment, including 19.5 secondments to the Staff Committee, all these secondments being distributed between the trade unions and staff associations on the basis of their representativeness.

10 As regards the present case, the ‘[p]rotocol agreement between the trade unions and staff associations and [the Personnel and Administration DG] concerning the allocation of resources for staff representation for 2007’ provided for the allocation of 20 posts to be filled by secondment – to which a supplementary allocation was added – to the Staff Committee, that is to say, the Central Staff Committee and the Local Staff Committees. Concerning, specifically, the allocation of those 20 secondments, 10 secondments were given to the Confederal Alliance of Free Trade Unions.

11 In practice, there are a number of arrangements under which one and the same official or other member of the staff may be seconded to a trade union or staff association (‘union representation’) and/or to the Staff Committee (‘representation as provided for in the Staff Regulations’), in particular as follows:

– 100% representation as provided for in the Staff Regulations, either with the Central Staff Committee or with a Local Staff Committee, or 100% union representation;

– 50% representation as provided for in the Staff Regulations and 50% union representation;

– 50% representation as provided for in the Staff Regulations or union representation, the person concerned being assigned to a service of the Commission for the remaining 50% of his working time.

12 The staff representatives who are seconded for union representation and/or representation as provided for in the Staff Regulations are chosen by the trade unions and staff associations, but the secondment decisions are adopted by the Commission.

Facts

13 The applicant, an official of the Commission at Eurostat, was, by decision of 12 March 2004 of Mr Reichenbach, then Director-General of the Personnel and Administration DG, granted 100% secondment for union representation purposes from 1 April 2004 to 31 December 2004, when he was to be reassigned to his service of origin, Eurostat. When that secondment decision was adopted, the applicant held the post of Political Secretary of the Confederal Alliance of Free Trade Unions.

14 In October 2004, the applicant was elected to the post of Vice-President of the Local Staff Committee in Luxembourg (‘the LSC’).

15 By decision of 23 September 2004 of Mr Chêne, Mr Reichenbach’s successor in the Personnel and Administration DG, which was replaced by a further decision adopted by Mr Chêne on 10 February 2005, the applicant was reassigned, with effect from 1 January 2005, at the rate of 50% to Eurostat. He therefore retained the benefit of the remaining 50% of his working time on secondment as a union representative.

16 None the less, in reality, throughout 2005 and 2006, the applicant was engaged exclusively in staff representation as provided for in the Staff Regulations and union representation (see paragraphs 14 and 15, respectively, of the present judgment), devoting 100% of his working time to those activities (‘staff representation activities’), with the consequence that he devoted no working time to the service to which he was assigned. It is common ground that that situation did not affect his leave entitlement.

17 By a memorandum to the applicant dated 27 September 2006, the Head of Unit E.5 ‘International statistical cooperation’ of Directorate E ‘Agricultural and environmental statistics, statistical cooperation’ (‘the applicant’s Head of Unit’ or ‘his Head of Unit’) requested the applicant, inter alia, to attend Unit E.5 in future for 50% of his working time, to carry out the duties associated with his post and to achieve the objectives as set and discussed during 2005, and also to submit a report at the end of each month on ‘progress made’; the applicant’s Head of Unit informed the applicant that ‘this [was] without prejudice to any consequences of non-attendance at [his] place of work and [of] the failure to carry out any work during the period since the date of [his] assignment to Unit E.5’.

18 In a letter to his Head of Unit dated 5 October 2006, the applicant, referring to his ‘half-secondment’ and to the burden of his responsibilities as Vice‑President of the LSC, expressed his surprise that he was at fault, even though, during a period when he was not on secondment and carried out fewer staff representation activities, the decisions not to promote him on the ground that he had done no work for Eurostat had been annulled by the Court of First Instance (see Case T‑175/02 Lebedef v Commission [2004] ECR-SC I‑A‑73 and II‑313 and Case T‑4/03 Lebedef v Commission [2004] ECR-SC I‑A‑79 and II‑337); the applicant further stated that ‘this is without prejudice to the consequences of the interference with my union activity, of the breach of Article 24b of the Staff Regulations, of the breach of the Framework Agreement between the Commission and the trade unions and staff associations, and of the mental harassment … suffered … for years [because of] Eurostat’.

19 By memorandum of 3 November 2006, the applicant, referring to Case T‑4/03 Lebedef v Commission, paragraphs 60 and 64, informed his Head of Unit, in particular, that his presence on and his work for the staff representation ‘also count[ed] for Eurostat’; he also proposed that the parties should ‘agree’ on an arrangement whereby his presence would be monitored by the staff representation, should such monitoring be necessary for practical and formal reasons.

20 In a memorandum of 17 November 2006, the Director-General of Eurostat informed the applicant that the administration of his file had been entrusted to the Head of Unit A.1 ‘Personnel’ of Directorate A ‘Resources’ of Eurostat (‘the Head of the Personnel Unit of Eurostat’).

21 In a letter of 16 January 2007, the applicant’s Head of Unit informed the applicant that, following consultation with the competent services of the Personnel and Administration DG, he was unable to accept the position adopted by the applicant in his letter of 5 October 2006; furthermore:

‘… complete absence of work for the unit of assignment is not possible without official secondment. Consequently, I consider that this absence is not in accordance with the Staff Regulations and is therefore irregular. I must reiterate the instruction in my memorandum of 27 September 2006 … that you adhere to the normal working regime during the time of [your] assignment to Eurostat. I ask you to notify me in advance of any absence, for whatever reason. These absences must be given prior approval by me.’

22 The applicant claims that from 29 January 2007 he noted that whenever he was not present at the Commission on a working day, including on the days when he was on a mission of union representation, a half day of irregular absence was recorded on the staff administration IT system called ‘SysPer 2’.

23 By letter of 5 February 2007 to the applicant’s Head of Unit, counsel for the applicant observed that the time during which the applicant did not carry out tasks assigned by Eurostat depended ‘exclusively on the amount of work he put in for staff representation as provided for in the Staff Regulations’ and reiterated the applicant’s arguments relating to a breach of his ‘union rights’ and of Article 24b of the Staff Regulations, which provides that officials have the right of association and may be members of trade unions or staff associations.

24 By memoranda of 12 March and 14 May 2007 to the Head of the Personnel Unit of Eurostat, Mr Frankin, President of the LSC, confirmed, with respect to the months of January, February, March and April 2007, that the applicant had been engaged either in union representation or representation as provided for in the Staff Regulations, or in Brussels on mission for the union representation (missions dated 11 and 30 January 2007, 14 February 2007 and 2 and 22 March 2007) and pointed out that the applicant had spent certain periods on leave and sick leave; on 9 January 2007 and between 19 and 28 February 2007 the applicant had been on leave approved by Eurostat and during the period from 18 January to 26 January 2007 he had been on sick leave declared to Eurostat, but also, during the periods from 26 to 30 March 2007 and from 2 to 30 April 2007, he had been first in hospital and then on sick leave ‘approved’ by Eurostat. In the same memoranda, the President of the LSC added that, according to the Staff Regulations and the Framework Agreement, the applicant’s staff representation activities counted as activities for his service and, consequently, as presence at Eurostat.

25 According to a table entitled ‘Évolution du quota’, which was apparently taken from SysPer2 (‘the SysPer2 table’), 15½ days were withdrawn from the applicant’s annual leave on 29 May 2007 and two days on 20 June 2007, three days on 28 June 2007 and three days on 6 July 2007; the days of leave thus deducted related to the four periods from 29 January 2007 to 23 March 2007, from 15 June 2007 to 20 June 2007, from 21 June 2007 to 28 June 2007 and from 29 June 2007 to 6 July 2007.

26 By memorandum of 5 July 2007 to the Head of the Personnel Unit of Eurostat, the President of the LSC confirmed, with respect to the months of May and June 2007, that the applicant had been engaged, including during the days on which he was on medical half time (namely 12 days, from 2 to 25 May 2007, and then eight days from 4 to 15 June 2007) either in union representation or representation as provided for in the Staff Regulations, or in Brussels on mission for the union representation (missions dated 1, 15 and 16 May 2007 and 7, 14 and 28 June 2007) and noted that the applicant had been on leave approved by Eurostat for the period from 28 May to 1 June 2007. In that memorandum, the President of the LSC added that, according to the Staff Regulations and the Framework Agreement, the applicant’s staff representation activities counted as activities with his service and, consequently, as presence at Eurostat.

27 By e-mail of 16 July 2007 to the applicant, his Head of Unit refused the applicant’s request for 34 days’ leave – between 30 July 2007 and 14 September 2007 – because his leave entitlement was only eight and a half days; according to the applicant’s Head of Unit, on each occasion when the applicant did not present himself for work or did not produce an appropriate certificate, the administration of Eurostat was obliged, as indicated in the letter of 16 January 2007, to record his absence as unauthorised.

28 By memorandum of 23 July 2007, the applicant responded to the e-mail of 16 July 2007, describing his Head of Unit’s decisions as ‘repeated and continuous mental harassment’.

29 By his e-mail of 26 July 2007, the applicant’s Head of Unit confirmed his refusal to grant the request for 34 days’ leave; he pointed out that the applicant’s absences had not been authorised in advance and stated that his remaining leave entitlement was now four and a half days. On the same date, and as shown by the SysPer2 table, three days, and then four days, were deducted from the applicant’s annual leave entitlement; those deductions related to the periods from 9 to 16 July 2007 and from 17 to 26 July 2007.

30 By e-mail of 1 August 2007 to his Head of Unit, the applicant informed his Head of Unit, in the first place, that he was on sick leave from 1 to 24 August 2007, which, moreover, is apparent from the SysPer2 table, and, in the second place, that he had requested leave for a period of seven days, from 27 August to 4 September 2007.

31 By e-mail of 2 August 2007, the applicant’s Head of Unit refused the applicant’s request for leave on the ground that his remaining leave entitlement was only one and a half days, and informed him that he would be prepared to agree to a request for a number of days equal to or less than five. On the same date, as may be seen from the SysPer2 table, one and a half days were deducted from the applicant’s leave entitlement; that deduction related to the period from 27 to 31 July 2007.

32 By memorandum of 27 August 2007 to the Head of the Personnel Unit of Eurostat, the President of the LSC, first, confirmed, with respect to July 2007, that the applicant had been engaged either in union representation or representation as provided for in the Staff Regulations, or in Brussels on mission for the union representation (missions dated 12, 18 and 26 July 2007) and, second, noted, with respect to August 2007, that the applicant had been on sick leave for the entire month, with the exception, according to that memorandum, of 2 August 2007, when the applicant had been in Brussels on mission for the union representation; as on the previous occasions, referred to at paragraphs 24 and 26 of the present judgment, the President of the LSC added that, according to the Staff Regulations and the Framework Agreement, the applicant’s staff representation activities counted as activities for his service and, consequently, as presence at Eurostat.

33 On 29 August 2007, the applicant lodged a complaint against the decisions of 29 May, 20 June, 28 June and 6 July 2007 and also against the two decisions of 26 July 2007 and the decision of 2 August 2007, concerning the deduction of 32 days from his leave entitlement for 2007 (‘the contested decisions’). In his complaint, the applicant relied, first, on breach of Articles 57, 59 and 60 of the Staff Regulations, the sixth paragraph of Article 1 of Annex II to the Staff Regulations and Article 1(2) of the Framework Agreement, and interference with freedom to belong to a trade union and, second, on breach of the principle of protection of legitimate expectations and of the rule patere legem quam ipse fecisti.

34 On 18 December 2007, the appointing authority expressly rejected the applicant’s complaint, on the ground that the applicant could not rely on his capacity as staff representative as justification for failing to fulfil his obligations as an official assigned for 50% of his working time to Eurostat; furthermore, and since Eurostat had scrupulously adhered to the procedures and since the conversion of the irregular absences into days of leave was merely the strict application of, in particular, Articles 59 and 60 of the Staff Regulations, no irregularity could be found in the contested decisions.

Forms of order sought by the parties and procedure

35 The applicant claims that the Tribunal should:

– annul the decisions of 29 May, 20 June, 28 June and 6 July 2007, and also the two decisions of 26 July 2007 and the decision of 2 August 2007, concerning the deduction of 32 days from his leave entitlement for 2007;

– make an order as to costs and expenses and order the Commission to pay them.

36 The Commission contends that the Tribunal should:

– dismiss the action;

– order the applicant to pay the costs.

37 Pursuant to Article 56 of the Rules of Procedure, the Tribunal prescribed measures of organisation of procedure, which were notified to the parties by letters of 8 January 2009 and 3 February 2009; the parties complied with those measures.

38 In his responses to the measures of organisation of procedure, the applicant submitted, without being contradicted on this point by the Commission at the hearing, that, with respect to the period from 1 August to 6 September 2007, he had been on sick leave from 1 to 24 August 2007 (see also paragraph 32 of the present judgment), and then from 27 August to 6 September 2007; furthermore, for the period from 10 September to 21 December 2007, the applicant stated, still without being contradicted by the Commission, that he had been on medical half time and had devoted the remainder of his working time exclusively to staff representation as provided for in the Staff Regulations and union representation and that Eurostat, which regarded him as being present at work during that period, had not withdrawn a single day from his leave entitlement.

Law

Arguments of the parties

39 In support of his claim that the contested decisions should be annulled, the applicant relies on two pleas in law, the first of which alleges (i) breach of Articles 57, 59 and 60 of the Staff Regulations, the sixth paragraph of Article 1 of Annex II to the Staff Regulations, and also Article 1(2) of the Framework Agreement and (ii) interference with trade union freedom; and the second of which alleges breach of the principle of protection of legitimate expectations and of the rule patere legem quam ipse fecisti.

40 As regards the first plea, the applicant, after referring to the judgments in Case T‑175/02 Lebedef v Commission and Case T‑4/03 Lebedef v Commission, maintains that his staff representation activities occupy him for more than seven and a half hours a day and that it is impossible to draw a clear distinction between the activities associated with union representation and those associated with representation as provided for in the Staff Regulations. The applicant further claims that the breaches on which he relies are even more manifest because Eurostat refused even to regularise his absences on mission for the union representation purposes and questions why the absences before January 2007 had not been considered unjustified. The applicant further observes that the Staff Regulations impose no limits on staff representation activities and contends that his is an ad hoc case and that a general approach is inappropriate.

41 As regards the second plea, the applicant relies on legitimate expectations, contends that Eurostat began to deduct days from his leave entitlement without ever informing him that the administration did not intend to take into consideration the memoranda from the President of the LSC confirming his presence (the memoranda referred to at paragraphs 24, 26 and 32 of the present judgment) and submits that it is incumbent on the Commission, under the principle pacta sunt servanda, to comply with Articles 57, 59 and 60 of the Staff Regulations, the sixth paragraph of Article 1 of Annex II to the Staff Regulations and Article 1(2) of the Framework Agreement.

42 With respect to the first plea, the Commission claims that nothing exempts the applicant from his obligation, in the event of absence, to obtain prior permission from his immediate superior or to inform that superior in advance. Such permission or information is lacking on every occasion in the present case. In addition, the Commission submits that the wording of the sixth paragraph of Article 1 of Annex II to the Staff Regulations implies that, in addition to the duties assumed by staff representatives, another part of the duties must of necessity be performed in the service to which the official concerned is assigned, unless he is on full-time secondment. Furthermore, the Commission observes that the judgments in Case T‑175/02 Lebedef v Commission and Case T‑4/03 Lebedef v Commission merely annul decisions refusing promotion and do not even address the question whether or not the applicant was required to perform his work in the service to which he was assigned. The Commission further contends that there is an abuse of right in the present case and that the judgment in Case F‑36/07 Lebedef v Commission [2008] ECR-SC I-A-1-0000 and II-A-1-0000 confirms that the applicant cannot in any event decide for himself on the use of his time while he is assigned to Eurostat. Last, the Commission informed the applicant of his obligations on several occasions, in particular by its letter of 16 January 2007, referring to the memorandum of 27 September 2006; the fact that the irregular absences were taken into account in the form of a deduction from the applicant’s leave entitlement is thus merely the strict application of, in particular, Articles 59 and 60 of the Staff Regulations.

43 With respect to the second plea, the Commission claims that the argument alleging breach of the rule patere legem quam ipse fecisti must be rejected, since all the relevant provisions were properly applied in the present case. For the same reason, the assertion relating to the alleged breach of the principle of protection of legitimate expectations cannot be upheld, more particularly because the applicant never received any individual promise and, on the contrary, was warned of the ‘possible consequences of his irregular conduct’. Last, the Commission observes that, although the applicant relies on the Framework Agreement, his relationship with the Commission is governed by the Staff Regulations and not by contract and that, accordingly, the principle pacta sunt servanda does not apply.

44 In his reply, the applicant claims that his Head of Unit and his superiors were aware of his activities. He also asserts that there is no abuse of right, but rather a conflict of ‘interests’ or, more specifically, a conflict between, on the one hand, his duties and obligations to his service and, on the other, staff representation. Last, the applicant maintains that while in Case F-36/07 Lebedef v Commission the Tribunal upheld the Commission’s criticisms of the applicant’s conduct, it ‘did not adjudicate on the so-called … absences’.

45 In its rejoinder, the Commission contends, in particular, that the fact that the applicant’s Head of Unit and his superiors were aware of his staff representation activities could not count as prior information or prior permission.

Findings of the Tribunal

The plea alleging (i) breach of Articles 57, 59 and 60 of the Staff Regulations, the sixth paragraph of Article 1 of Annex II to the Staff Regulations and Article 1(2) of the Framework Agreement and (ii) interference with trade union freedom

46 Staff representation is of vital importance for the proper functioning of the Community institutions and, accordingly, for the fulfilment of their tasks.

47 In recognition of that importance, the Council provided, at the sixth paragraph of Article 1 of Annex II to the Staff Regulations, that the duties undertaken by members of the Staff Committee are to be deemed to be ‘part of their normal service in their institution’ and that such duties are ‘in no way [to] be prejudicial to the person concerned’. Likewise, Article 1(2) of the Framework Agreement provides, in particular, that union representation activities ‘shall in no way adversely affect the position or career of an official’.

48 In addition, the experience acquired within the Community institutions with respect to staff representation has revealed the advantages of a scheme whereby certain officials or servants devote 50% or 100% of their working time to staff representation duties; the scheme is described at paragraph 11 of the present judgment.

49 None the less, it is neither possible nor desirable that staff representation should be provided solely by officials or other servants on secondment, whether for 50% or 100% of their working time. There is a positive interest in persons not on secondment assuming a part of the staff representation duties. However, the system referred to in the preceding paragraph, which specifically provides for the grant of secondment to certain staff representatives, implies that, in the case of officials or servants not on secondment, participation in staff representation activities should be occasional and, calculated on a six‑monthly or quarterly basis, cover a relatively limited percentage of working time.

50 It is true that the precise delimitation of the ‘occasional’ nature of participation in staff representation and the precise delimitation of the percentage of time devoted to staff representation are by nature impossible and can be undertaken only on a case-by-case basis. It must be held, however, that to accept that an official or other servant not on secondment should devote virtually all, or indeed all, his working time to staff representation, and thus devote little, or indeed no, working time to the service to which he is assigned, has the effect of distorting the system put in place by the various agreements concluded between the Commission and the trade unions and staff associations (see paragraphs 8, 9 and 10 of the present judgment) and, depending on the circumstances of the case, is liable to constitute an abuse of right, which the Community judicature may be induced to penalise (see Case T‑271/04 Citymo v Commission [2007] ECR II‑1375, paragraph 100 et seq.; more specifically, in relation to the civil service, Case T‑222/95 Angelini v Commission [1997] ECR-SC I‑A‑491 and II‑1277, paragraphs 35 and 36; Case T‑57/96 Costantini v Commission [1997] ECR-SC I‑A‑495 and II‑1293, paragraphs 28 and 29; and order of the Court of First Instance in Case T‑95/98 DEP Gogos v Commission [2001] ECR-SC I‑A‑123 and II‑571, paragraph 24).

51 In any event, for the purpose of resolving the dispute before it, there is no call for the Tribunal to rule on the precise limits to be observed in the exercise of their representation activities by staff representatives who are not on secondment or are on secondment for only 50% of their working time. Nor is there any call for the Tribunal to rule on whether the applicant may have committed an abuse of right, or to examine, for the purpose of establishing the existence of such an abuse, the conduct of the institution, in particular the consistent and continuous nature of its interpretation and implementation of the relevant rules of the Staff Regulations, and also of the clarity and coherence of its attitude towards the applicant, the absence of which may have contributed to such an abuse.

52 Indeed, it is to be noted, throughout 2007, the applicant devoted none of his working time to the service to which he was assigned. During the period to which the contested decisions relate, namely the period from 29 January 2007 to 23 March 2007 and that from 15 June 2007 to 31 July 2007, the applicant – as he states in his application – devoted 60% of his working time to union representation activities, for which he was seconded at the rate of 50%, and the remaining time to representation activities as provided for in the Staff Regulations. Furthermore, the applicant’s responses to the measures of organisation of procedure show that, for the remainder of 2007, which, admittedly, is not concerned by the contested decisions, he was either on sick leave, or on medical half time, and when he was on medical half time his working time was ‘devoted exclusively to union staff representation and to staff representation as provided for in the Staff Regulations’ (for the latter period, no days were deducted from his leave entitlement).

53 Yet none of those absences, which were, first, deemed irregular by the administration of Eurostat, then deducted from the applicant’s leave entitlement to the extent of the working time which he ought to have provided within the service to which he was assigned, namely to the extent of 50%, and gave rise, finally, to the adoption of the contested decisions, had been the subject of prior permission by the applicant’s immediate superior at Eurostat, namely his Head of Unit, nor had the applicant, at the very least, informed his Head of Unit in advance that he would be absent.

54 Thus, the applicant failed to comply with Article 60 of the Staff Regulations, under which an official is required to obtain prior permission from his immediate superior for any absence, except in case of sickness or accident. Neither did he thereby, at least, do what the Commission suggested at the hearing would be acceptable, namely inform his Head of Unit in advance, thereby providing information of the type envisaged in Article 6(1) of Commission Decision C(2005) 2665 of 15 July 2005 on improving social dialogue within that institution, which was cited in the memorandum of 4 January 2007 of the Head of Unit B.5 ‘Social dialogue, enlargement and relations with the national public administrations’ of the Personnel and Administration DG, addressed to the Head of the Personnel Unit of Eurostat and annexed to the Commission’s responses to the measures of organisation of procedure (that article states that members of the joint commissions and committees, including staff representatives, must notify their immediate superior in advance of any absence relating to their participation in the work of a commission or committee).

55 Furthermore, and in the light of the foregoing, the ex post facto confirmation provided by the President of the LSC on 12 March, 14 May, 5 July and 27 August 2007, addressed to the Head of the Personnel Unit of Eurostat, cannot validate ex post facto the applicant’s irregular absences, as such validation can apply only in the event of sickness or accident, under Article 60 of the Staff Regulations; in any event, even where such ex post facto confirmation is given, the competent administration must be able to retain a certain right of control and to assess the merits of an ex post facto regularisation of the absence deemed irregular.

56 It is true that, in order to justify his failure to seek prior permission or to inform his Head of Unit in advance, the applicant relied on practical difficulties and the confidentiality inherent in his staff representation activities.

57 The Tribunal observes, however, that the Commission stated, without being contradicted on that point by the applicant, that other officials or servants of the Commission managed to reconcile the tasks associated with the service to which they are assigned and their staff representation tasks, in compliance with Article 60 of the Staff Regulations. Furthermore, while it may be accepted that in certain circumstances practical difficulties or constraints imposed by confidentiality may prevent staff representatives from complying with the obligation to obtain prior permission from their immediate superior (or, at the very least, and in the sense indicated at paragraph 54 of the present judgment, the obligation to inform their immediate superior in advance), it must be borne in mind that in the present case the applicant never sought prior permission from his Head of Unit for his absences (or, at the very least, informed him in advance that he would be absent). Nor did the applicant refer, in particular at the hearing, to any specific case in which practical difficulties or constraints imposed by confidentiality prevented him from complying with that obligation; as regards, in particular, the question of confidentiality, and apart from the fact that much information relating to staff representation activities is not confidential, notably the place and time of official meetings, and the details of those participating in them, and that the obligation to maintain confidentiality thus relates to only a part of those activities, it must be accepted that, even where such confidential data are present, it is always possible for a staff representative to provide his immediate superior with general, non-confidential information, such as the approximate duration of a meeting. Consequently, the applicant’s argument relating to the existence of practical difficulties or constraints imposed by confidentiality in the exercise of his staff representation activities, an argument which, moreover, is unsubstantiated, could not in any event completely exonerate him from his obligation to seek prior permission from his Head of Unit (or, at the very least, and in the sense indicated at paragraph 54 of the present judgment, to inform his Head of Unit in advance that he would be absent).

58 Nor can the fact that the administration of Eurostat, and therefore the applicant’s Head of Unit, were aware of the staff representation activities which the applicant carried out outside the working time devoted to secondment for union purposes have the consequence of justifying the applicant’s conduct. A general and vague awareness, as in the present case, of the official’s staff representation activities by the service to which he is assigned cannot count as prior information, in the sense indicated at paragraph 54 of the present judgment, or, a fortiori, prior permission from the official’s immediate superior.

59 Furthermore, although, in a memorandum of 3 November 2006 to his Head of Unit, the applicant suggested that an arrangement be put in place whereby his absences would be monitored by the ‘staff representation’, such an arrangement cannot be appropriate in a case such as this. It is common ground that the applicant belongs to two hierarchical structures, the first being that of the staff representation concerning his activities as a union representative and the second being that of Eurostat in connection with his assignment to that service; while the staff representation is competent to monitor the applicant’s absences in the context of his secondment for union purposes, the same does not apply with respect to his absences in relation to the time which he is required to devote to the service to which he is assigned, for which only Eurostat is competent.

60 Finally, the fact that, first (as the applicant asserted at the hearing, and even on the assumption that it is indeed the case), the majority of staff representatives not on secondment devote little time to staff representation, while other persons, including the applicant, carry out important and necessary tasks for the preparation and smooth progress of the meetings of the Staff Committee, and, second, the applicant’s absences have no connection with his private life but are connected to the exercise of staff representation activities is not such as to invalidate the Tribunal’s conclusion.

61 It follows from the foregoing considerations that, in the present case, the deduction of the applicant’s days of leave by the administration of Eurostat does not contravene Article 60 of the Staff Regulations.

62 The same applies with respect to the other provisions on which the applicant relies in support of his first plea and also to the interference with his trade union freedom. That is so, in particular, of the alleged breach of Article 57 of the Staff Regulations, given that this article provides simply that officials are entitled to leave and that in the present case the applicant was not denied his leave entitlement. As for Article 59 of the Staff Regulations, it concerns officials who are prevented from carrying out their duties following sickness or accident, while in the present case the issue of the deduction of leave entitlement did not relate to such circumstances. In any event, the applicant has put forward no autonomous argument in support of the alleged breach of those two articles. Nor can it be inferred either from the fact that the duties undertaken by the members of the Staff Committee are deemed to be part of the service which they are required to provide in their institution (as set out in the sixth paragraph of Article 1 of Annex II to the Staff Regulations), or from the fact that the institutions are prohibited from treating staff representatives in a manner that is in any way prejudicial (as set out in the sixth paragraph of Article 1 of Annex II to the Staff Regulations and in Article 1(2) of the Framework Agreement) or, last, from the very concept of trade union freedom on which the applicant relies, that staff representatives have a general right to absent themselves from the place of work within the service to which they are assigned, without obtaining prior permission from their immediate superior (or, at the very least, and as indicated at paragraph 54 of the present judgment, informing their immediate superior in advance), and to devote no working time to the service to which they are assigned, a fortiori when those absences cover an essential part, and indeed the entirety, of their working time, and when it is not even alleged, still less proved, that the administration had refused to grant the official concerned the necessary facilities to perform his staff representation duties.

63 The findings which the Tribunal reached at paragraphs 61 and 62 of the present judgment also apply with respect to the days of leave deducted for the missions which the applicant undertook in Brussels in 2007 on behalf of the union representation, on 30 January, 14 February, 2 and 22 March, 28 June and 12, 18 and 30 July. Even for absences in connection with those missions, the applicant was required to request prior permission from his Head of Unit at Eurostat (or, at the very least, and in the sense indicated at paragraph 54 of the present judgment, to inform his Head of Unit in advance), particularly since, in the case of scheduled official meetings, there can be no problems of the type mentioned at paragraph 57 of the present judgment, namely practical difficulties or an obligation to maintain confidentiality.

64 Furthermore, although, for each mission which he undertook in Brussels on behalf of the union representation, the applicant was justified in devoting a whole working day and thus, since he was on secondment for union activities only to the extent of 50%, in exceeding the working time which he was able to devote to such activities, the applicant ought to have made up for such a situation by working, for each day spent on mission in Brussels, a full day in the unit to which he was assigned at Eurostat. In any event, the complaint relates only to the deduction of four days’ leave on account of eight days spent on mission in Brussels on behalf of the union representation. During the period to which the contested decisions relate, Eurostat did not deduct any days of leave for the days during which the applicant was on medical half time and yet had not devoted any working time to the service to which he was assigned. In effect, the administration of Eurostat agreed that, during those days (see paragraph 26 of the present judgment), the applicant devoted the remaining 50% of his working time to staff representation, although, as the Commission observed in its responses to the measures of organisation of procedure, Eurostat could have deducted days of leave from the applicant’s leave entitlement on that basis (a higher number than that deducted for the days spent on mission in Brussels) and, moreover, maintains that it is entitled to do so ‘should the Tribunal not follow [the Commission’s] arguments’. Likewise, it is clear from the applicant’s responses to the measures of organisation of procedure that, for the period (to which the contested decisions do not relate) during which he was on medical half time, namely from 10 September to 21 December 2007, Eurostat did not deduct a single day from his leave entitlement, although he had devoted the remainder of his working time exclusively to staff representation as provided for in the Staff Regulations and to union staff representation.

65 It follows that this plea must be rejected as unfounded.

The plea alleging breach of the principle of protection of legitimate expectations and of the rule patere legem quam ipse fecisti

66 According to settled case-law, the right to claim protection of legitimate expectations extends to any individual who can rely on precise, unconditional and consistent assurances given by the administration (Case T‑235/94 Galtieri v Parliament [1996] ECR-SC I‑A‑43 and II‑129, paragraphs 63 and 65; Case T‑329/03 Ricci v Commission [2005] ECR-SC I-A-69 and II-315, paragraph 79; Case F‑4/07 Skoulidi v Commission [2008] ECR-SC I-A-1-0000 and II-A-1-0000, paragraph 79; and Case F‑126/07 Van Beers v Commission [2008] ECR-SC I-A-1-0000 and II-A-1-0000, paragraph 70).

67 In the present case, even on the assumption that Eurostat’s inertia in 2005 and 2006 with respect to the applicant’s absences from the service to which he was assigned could be considered equivalent, within the meaning of the case-law cited above, to ‘precise, unconditional and consistent assurances’ by the administration, which had, first, allowed the applicant to carry out his staff representation activities without doing any work in the unit to which he was assigned and, second, allowed him to dispense with his obligation to request prior permission from his Head of Unit (or at the very least, and in the sense indicated at paragraph 54 of the present judgment, his obligation to inform his Head of Unit in advance), such a finding would be valid, in any event, only until the time when the memorandum of 27 September 2006 was sent to the applicant or, at the latest, until the letter of 16 January 2007 was sent. By that memorandum and letter, the applicant’s Head of Unit requested him to present himself in future in his service for 50% of his working time and to carry out the tasks relating thereto, then indicated that his complete absence from work for the service to which he was assigned was not, in the absence of formal secondment, in accordance with the Staff Regulations and was therefore irregular, and, last, requested the applicant to notify him in advance of any absence, so that prior approval could be given; in addition, in the memorandum of 27 September 2006, the applicant’s Head of Unit stated that the terms of that memorandum were ‘without prejudice to any consequences of non-attendance at [the applicant’s] place of work and [of] the failure to carry out any work during the period since the date of [his] assignment to Unit E.5’.

68 Thus, upon receiving that memorandum and letter, and afterwards, namely during the period to which the contested decisions relate, the applicant could not rely on any assurance whatsoever given to him by the administration of Eurostat, and still less on a legitimate expectation within the meaning of the case-law cited at paragraph 66 of the present judgment, or even on the right to maintain the situation existing in 2005 and 2006.

69 Furthermore, it is apparent on reading the case-file that, even if the interpretation and implementation of the relevant rules of the Staff Regulations by Eurostat were not stable and continuous in the present case and even if the attitude of the administration towards the applicant was not always clear and coherent, the fact none the less remains that Eurostat acted diligently by advising the applicant, by the memorandum of 27 September 2006 and the letter of 16 January 2007, of his obligation to present himself in future in his service at Eurostat, of the fact that his absences were irregular under the Staff Regulations and of the need to provide prior information of and obtain prior permission for his absences.

70 As regards the complaints relating to the Commission’s obligation, under the principle pacta sunt servanda, to comply with Articles 57, 59 and 60 of the Staff Regulations, the sixth paragraph of Article 1 of Annex II to the Staff Regulations and Article 1(2) of the Framework Agreement, and apart from the fact that, with respect to the Commission’s obligation to comply with those provisions, the employment relationship between the applicant and the administration is governed by the Staff Regulations and not by contract, it must be held that, in the light of the considerations set out in the context of the first plea, this complaint must also be rejected.

71 Consequently, the plea alleging breach of the principle of protection of legitimate expectations and of the rule patere legem quam ipse fecisti must be rejected as unfounded.

Costs

72 Under Article 87(1) of the Rules of Procedure, without prejudice to the other provisions of Chapter 8 of Title II of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Pursuant to Article 87(2), if equity so requires, the Tribunal may decide that an unsuccessful party is to pay only part of the costs or even that he is not to be ordered to pay any.

73 In the present case the applicant has been unsuccessful. Thus, in the absence of any reason to apply Article 87(2) of the Rules of Procedure, the applicant must be ordered to pay all the costs.

On those grounds,

THE TRIBUNAL (First Chamber)

hereby:

1. Dismisses the action;





2. Orders Mr Lebedef to pay all the costs.

Gervasoni Kreppel Tagaras

Delivered in open court in Luxembourg on 7 July 2009.

W. Hakenberg S. Gervasoni

Registrar President