CELEX: 62020CC0162
Language: en
Date: 2021-06-03 00:00:00
Title: Opinion of Advocate General Richard de la Tour delivered on 3 June 2021.#WV v European External Action Service.#Case C-162/20 P.

OPINION OF ADVOCATE GENERAL
   RICHARD DE LA TOUR
   delivered on 3 June 2021 (
         1
      )
   
      Case C‑162/20 P
   
   WV
   v
   European External Action Service
   (Appeal – Civil service – Official – Staff Regulations of Officials of the European Union – Article 60, first paragraph – Unauthorised absence – Scope – Official who has failed to fulfil his or her obligations under Articles 21 and 55 of the Staff Regulations – Withholding of salary)
   
      I. Introduction
   
   
            1.
         
         
            In his cat-in-the-box experiment, the physicist Schrödinger (
                  2
               ) demonstrated that, outside the field of quantum physics, a being or object can have only one state at a time. For the cat, it can only be dead or alive. Likewise, for a person, with the exception of those possessing the gift of ubiquity – the preserve of gods however – they can only be present in a place or absent from that place. They cannot therefore be both absent and present. Nevertheless this is the conclusion reached by the General Court of the European Union in its order of 29 January 2020, WV v EEAS, (
                  3
               ) by deciding that an official, although present at her place of work, could be considered to be in a situation of ‘unjustified absence’, in so far as she failed to perform the tasks entrusted to her in accordance with her obligations under the Staff Regulations and that, as a result, she was not entitled to receive her salary on account of that ‘unauthorised absence’.
         
      
            2.
         
         
            An appeal against that order has been brought by WV, an official of the European Union assigned to the European External Action Service (EEAS), in respect of whom it was decided, for the reasons set out above, to withhold her salary for up to 72 calendar days pursuant to the first paragraph of Article 60 of the Staff Regulations of Officials of the European Union, in the version applicable to the dispute giving rise to the present appeal (‘the Staff Regulations’). (
                  4
               )
         
      
            3.
         
         
            Whilst the Courts of the European Union have already interpreted the concept of ‘unauthorised absence’ within the meaning of that article, their case-law concerns situations in which the official was absent from his or her place of work for supposed or proven medical reasons, for exercising the right to strike, or for the purposes of union representation. (
                  5
               ) The question raised by the present appeal is new since the Court is being asked to clarify the meaning and scope of the concept of ‘absence’ of an official expressing his or her intention at his or her place of work (
                  6
               ) not to work within the department, carry out the tasks entrusted to him or her, assist his or her superiors, or make himself or herself available to them in accordance with the requirements set out in Articles 22 and 55 of the Staff Regulations.
         
      
            4.
         
         
            At the request of the Court, this Opinion will be limited to examining the question raised in the context of the fifth part of the single ground of appeal.
         
      
            5.
         
         
            At the end of my analysis, I will propose that the Court of Justice finds the complaints raised by the applicant with regard to the General Court’s interpretation of the first subparagraph of Article 60 of the Staff Regulations to be well founded. I take the view that an official who fails to fulfil his or her professional obligations during the period of work cannot be regarded as being absent from his or her place of work within the meaning of that provision.
         
      
      II. Legal framework
   
   
            6.
         
         
            Under Title II of the Staff Regulations relating to ‘rights and obligations of officials’, Article 21, first paragraph, provides:
            ‘An official, whatever his rank, shall assist and tender advice to his superiors; he shall be responsible for the performance of the duties assigned to him.’
         
      
            7.
         
         
            Under Title IV of the Staff Regulations, entitled ‘Working conditions of officials’, Article 55 states:
            ‘1.   Officials in active employment shall at all times be at the disposal of their institution.
            2.   The normal working week shall range from 40 to 42 hours, the hours of the working day to be determined by the appointing authority …
            3.   An official may, moreover, be required because of exigencies of the service or safety rules to remain on standby duty at his place of work or at home outside normal working hours …
            …’
         
      
            8.
         
         
            Article 60, first paragraph, of the Staff Regulations provides:
            ‘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.’
         
      
            9.
         
         
            Under Title VI of the Staff Regulations, entitled ‘Disciplinary measures’, Article 86 provides:
            ‘1.   Any failure by an official or former official to comply with his obligations under these Staff Regulations, whether intentionally or through negligence on his part, shall make him liable to disciplinary action.
            …
            3.   Disciplinary rules, procedures and measures and the rules and procedures covering administrative investigations are laid down in Annex IX.’
         
      
            10.
         
         
            Article 9(1) of Annex IX to the Staff Regulations, relating to disciplinary measures, provides that the appointing authority may impose one of the following penalties: a written warning; a reprimand; deferment of advancement to a higher step for a period of between one and 23 months; relegation in step; temporary downgrading for a period of between 15 days and 1 year; downgrading in the same function group; classification in a lower function group, with or without downgrading; removal from post and, where appropriate, reduction pro tempore of a pension or withholding, for a fixed period, of an amount from an invalidity allowance; the effects of this measure shall not extend to the official’s dependants.
         
      
      III. Background to the dispute
   
   
            11.
         
         
            For the purposes of the present appeal, the background to the dispute, as set out in paragraphs 1 to 48 of the order under appeal, may be summarised as follows.
         
      
            12.
         
         
            The applicant was assigned to the EEAS from 1 January 2011. She was transferred several times before being assigned to the PRISM Division on 16 November 2016 in the interests of the service. After being informed on 16 January 2017 that her absences were regarded as being ‘unauthorised’ and that she had not yet been seen in her office, the applicant, on 10 February 2017, was questioned by her superiors with regard to her absences. By email of 3 April 2017, she sent a medical certificate to justify her absences of 30 and 31 March and 3 April 2017. By email of 10 April 2017, the applicant informed her superiors that her absences, including some for future dates, had been wrongly recorded on the staff administration IT system ‘Sysper’.
         
      
            13.
         
         
            On 25 and 26 April 2017, the applicant exchanged emails with her Head of Unit regarding the fact that her Head of Division took the view that her presence in her office was considered by the administration to amount to an unauthorised absence. The Head of Unit explained to the applicant, inter alia, the conditions to be met in order to be considered ‘present’ at work.
         
      
            14.
         
         
            On 12 September 2017, the applicant’s Head of Unit sent her a note in which it was stated that, in respect of the period from 1 January to 14 July 2017, the applicant had 85 days’ unjustified absences which would be deducted from her remuneration in accordance with Article 60 of the Staff Regulations.
         
      
            15.
         
         
            On 27 November 2017, the EEAS informed the applicant, by the contested decision, that the calculation of her unjustified absences had been revised, namely that 9 days would be converted into annual leave and that the equivalent of 72 days would be deducted from her salary. On 7 December 2017, the applicant was informed of the amount that would be deducted from her salary from February 2018.
         
      
            16.
         
         
            On 3 January 2018, the applicant lodged a complaint, pursuant to Article 90(2) of the Staff Regulations, against the contested decision before the Commission’s Office for the Administration and Payment of Individual Entitlements (PMO) made, on 6 February 2018, any deductions from her remuneration in accordance with that decision.
         
      
            17.
         
         
            On 2 May 2018, the appointing authority rejected the complaint submitted by the applicant. (
                  7
               )
         
      
      IV. The action before the General Court and the order under appeal
   
   
            18.
         
         
            By application lodged at the Registry of the General Court on 2 August 2018, the applicant brought an action seeking, first, annulment of the contested decision and the decision rejecting the complaint and, second, restitution of the amounts wrongly deducted from her salary, plus default interest.
         
      
            19.
         
         
            The applicant put forward a single plea in law in respect of which she relied on a series of errors of law, alleging infringement of both the Staff Regulations and general principles of EU law. (
                  8
               ) In the context of the errors of law alleged, the applicant submitted that those decisions infringed Articles 21, 55 and 60 of the Staff Regulations, in so far as she had adduced evidence of her presence in EEAS office buildings and within the division on the days which were considered to be unauthorised absences.
         
      
            20.
         
         
            By the order under appeal, the General Court dismissed the action, in its entirety, as being, in part, manifestly inadmissible and, in part, manifestly unfounded in law.
         
      
            21.
         
         
            With regard to the arguments put forward by the applicant concerning the alleged infringement of Articles 21, 55 and 60 of the Staff Regulations, the General Court found, in paragraph 67 of the order under appeal, that they were manifestly lacking any foundation in law.
         
      
            22.
         
         
            In order to examine the conformity of the contested decision and the decision rejecting the complaint, the General Court, first of all, examined, in paragraph 71 of that order and on the basis of the wording of Articles 21, 55 and 60 of the Staff Regulations, the obligations of officials under Articles 21 and 55 of the Staff Regulations and the nature of the penalty provided for under the first paragraph of Article 60 of the Staff Regulations in the event of the unauthorised absence of the official in question. The General Court held as follows:
            ‘It is apparent from the wording of those provisions, first, that an official is required to assist and tender advice to his or her superiors and that he or she is responsible for the performance of the duties assigned to him or her (Article 21 of the Staff Regulations) and, second, that he or she must at all times be at the disposal of his or her institution (Article 55 of the Staff Regulations). Lastly and third, Article 60 of the Staff Regulations penalises any unauthorised absence by deducting it from the annual leave of the official concerned. In accordance with that same article, if the official has used up his or her annual leave, he or she forfeits his or her remuneration for an equivalent period.’
         
      
            23.
         
         
            Next, in paragraphs 73 to 78 of the order under appeal, the General Court set out evidence of the applicant’s breach of her obligations under Articles 21 and 55 of the Staff Regulations. After noting the fact that she had made clear her intention not to work within the division to which she had been transferred and her desire not to assist her superiors, carry out the tasks entrusted to her or make herself available to the EEAS at all times, the General Court held that the applicant had manifestly failed to meet the conditions laid down by Articles 21 and 55 of the Staff Regulations.
         
      
            24.
         
         
            The General Court concluded, in paragraph 79 of the order under appeal, as follows:
            ‘It follows that, even if it were established that the applicant was actually present in EEAS office buildings as claimed, the fact remains that, by clearly stating her intention not to work within the PRISM Division on the ground that she wanted to focus solely on the administrative issues related to her transfer, the applicant manifestly failed to comply with the conditions laid down by Articles 21 and 55 of the Staff Regulations. The EEAS cannot therefore be criticised for considering the applicant to be in a situation of unjustified absences. Moreover, since the absences invoked by the EEAS had not been authorised in advance by her superiors, the deduction from her pay of up to 72 calendar days is merely the consequence of non-compliance with the requirements provided for in Article 60 of the Staff Regulations (see, by analogy, judgment of 16 December 2010, Lebedef v Commission, T‑364/09 P, EU:T:2010:539, paragraphs 24 to 26).’
         
      
            25.
         
         
            Lastly, in paragraph 80 of the order under appeal, the General Court stated that its conclusion was not called into question by the fact that the applicant had submitted evidence of her presence in her office. The General Court took the view that the evidence failed to demonstrate that the applicant had assisted her superiors by performing the tasks entrusted to her or that she had made herself available to the EEAS at all times in accordance with her obligations under Articles 21 and 55 of the Staff Regulations.
         
      
            26.
         
         
            In the light of the foregoing, the General Court found the applicant to be in a situation of unauthorised absence which justified deductions from her remuneration in accordance with the first paragraph of Article 60 of the Staff Regulations.
         
      
      V. The proceedings before the Court of Justice and the forms of order sought
   
   
            27.
         
         
            By action lodged at the Court Registry on 7 May 2020, the applicant brought an appeal against the order under appeal pursuant to Article 56 of the Statute of the Court of Justice of the European Union.
         
      
            28.
         
         
            The applicant requests that the Court annuls the order under appeal, orders the EEAS to pay the costs incurred in both proceedings and refers the case back to the General Court in order to rule on the action.
         
      
            29.
         
         
            The EEAS contends that the Court should dismiss the appeal as inadmissible or, at the very least, unfounded and requests that the Court orders the applicant to pay the costs and expenses of the proceedings.
         
      
      VI. Targeted examination of the fifth part of the single ground of appeal
   
   
            30.
         
         
            I note that, in accordance with the Court’s request, this Opinion will be limited to the analysis of the fifth part of the single ground of appeal and, in particular, to the first complaint thereof.
         
      
            31.
         
         
            In order to understand the context of that examination better, I note that the fifth part of the single ground of appeal raised by the applicant consists of two complaints. By the first complaint, on which this Opinion is based, the applicant criticises the General Court for its misapplication of the first paragraph of Article 60 of the Staff Regulations by finding that an official is considered to be in a situation of ‘unjustified absence’ within the meaning of that article where, although present in the buildings of the institution, he or she fails to meet the obligations relating to attendance and availability set out in Articles 21 and 55 of the Staff Regulations. The applicant claims that, in such a situation, only disciplinary proceedings may be opened which do not provide for the deduction of remuneration as a penalty.
         
      
            32.
         
         
            By the second complaint, the applicant criticises the General Court for distorting the facts by considering her to be in a situation of unjustified absences even though she was physically present at her place of work.
         
      
            33.
         
         
            The EEAS considers those arguments to be unfounded. It claims, in particular, that the General Court was right to find that the first paragraph of Article 60 of the Staff Regulations penalises any unauthorised absence and implies an effective presence in the workplace, which requires that the official fulfils two cumulative conditions, set out in Articles 21 and 55 of the Staff Regulations, namely to assist his or her superiors by performing the tasks entrusted to him or her and, to that end, to make himself or herself available to the institution at all times.
         
      
      
         A.
       
         Preliminary observations
      
   
   
            34.
         
         
            As a preliminary point, it should be noted that I will limit my analysis to the interpretation of the concept of ‘unauthorised absence’ of an official within the meaning of the first paragraph of Article 60 of the Staff Regulations, even though the General Court also referred to the concept of ‘unjustified absence’ of an official.
         
      
            35.
         
         
            In paragraph 79 of the order under appeal, the General Court held, first of all, that an official who does not comply with his or her professional obligations under Articles 21 and 55 of the Staff Regulations may be considered by his or her superiors as being in a situation of ‘unjustified absences’, despite his or her presence in the workplace. Next, the General Court considered that such an absence, in so far as prior permission had not been obtained from the immediate superior, constitutes, in essence, an ‘unauthorised absence’ within the meaning of the first paragraph of Article 60 of the Staff Regulations, so that it is possible to deduct from the official’s remuneration up to the number of days of absences.
         
      
            36.
         
         
            The applicant was therefore in a situation of ‘unjustified absence’ on account of her failure to comply with her professional obligations before being in a situation of ‘unauthorised absence’, within the meaning of the first paragraph of Article 60 of the Staff Regulations, in the absence of prior permission being obtained from her immediate superior.
         
      
            37.
         
         
            Each of those concepts refers to a specific legal regime provided for by the Staff Regulations. Whilst the concept of ‘unauthorised absence’ is governed by the first paragraph of Article 60 of the Staff Regulations, the infringement of which is invoked in the present appeal, the concept of‘unjustified absence’ is referred to in Article 59 of the Staff Regulations which relates to the sick leave by reason of illness or accident of an official. By virtue of that provision, the official’s absence is considered unjustified if he or she fails to produce a medical certificate within the prescribed period, if the medical examination arranged by the institution cannot take place for reasons attributable to the official, or if the finding made in that examination or by an independent doctor is that the official is able to carry out his or her duties. In those circumstances, and without prejudice to possible disciplinary action, the unjustified absence of an official is deducted from the annual leave of the official concerned or, if he or she has used up his or her annual leave, from his or her remuneration.
         
      
            38.
         
         
            It is not possible on reading the order under appeal to determine the reasons why the General Court refers to the concept of ‘unjustified absence’; whether the application of Article 59 of the Staff Regulations is at issue – in which case I consider the General Court’s analysis to be incorrect and contrary to the requirement to state reasons – or whether it arises from the linguistic differences existing between the English- and French-language versions of Article 59 of the Staff Regulations. In the English-language version of that article, the term ‘unauthorised absence’ is sometimes used instead of the term ‘unjustified absence’ used in the French-language version. (
                  9
               )
         
      
            39.
         
         
            In any event, since the complaints put forward by the applicant relate solely to an alleged infringement of Article 60 of the Staff Regulations, I will limit my analysis to the interpretation of the concept of ‘unauthorised absence’ of an official referred to in that article.
         
      
      
         B.
       
         Analysis
      
   
   
            40.
         
         
            For the reasons which I will set out, I take the view that the General Court erred in law by misinterpreting the concept of ‘absence’ used by the EU legislature in the first paragraph of Article 60, since that interpretation has rather strange consequences for the scope of that article. It follows from the General Court’s analysis that an official who, although present at his or her place of work, has not obtained prior permission from his or her immediate superior not to work or to perform his or her duties badly and therefore fail to comply with his or her professional obligations during working time is considered to be in a situation of ‘unauthorised absence’ within the meaning of the first paragraph of Article 60 of the Staff Regulations. In other words, so as not to be considered to be in a situation of ‘unauthorised absence’, the official should be present at work and obtain permission from his or her superior not to work or to perform his or her duties badly.
         
      
            41.
         
         
            In so far as the concept of ‘absence’ is not defined in the Staff Regulations, its meaning must be determined by reference to its usual meaning in everyday language and the scheme and purposes of the rules of which it is part. (
                  10
               )
         
      
      1. The terms of Article 60, first paragraph, of the Staff Regulations
   
   
            42.
         
         
            Article 60, first paragraph, of the Staff Regulations provides that, except in case of sickness or accident, an official may not be absent without prior permission from his or her immediate superior. Otherwise the absence is considered unauthorised and, without prejudice to any disciplinary measures that may apply, that absence is deducted from the annual leave of the official concerned or, if he or she has used up his or her annual leave, from his or her remuneration.
         
      
            43.
         
         
            I observe, in the first place, that the term ‘absence’ used in the first paragraph of Article 60 of the Staff Regulations is translated uniformly in all language versions of the Staff Regulations. (
                  11
               ) Only the German-language version stands out since the concept of ‘absence’ is translated by the word ‘fernbleiben’ which is understood as ‘to stay away’, which suggests, more vividly, a physical distance on the part of the person concerned.
         
      
            44.
         
         
            In everyday language, the concept of ‘absence’ refers to the fact that someone or something is not where it is expected to be. (
                  12
               ) This could be, for example, a person who has left his or her home, a teacher who does not teach his or her class, a pupil who is not present in class or who does not participate in an activity in which he or she is supposed to, or a person who fails to appear in court. In a legal sense, absence is defined as the state of a person in respect of whom we do not know what has become of them, in so far as they have ceased to appear at the place of their domicile or residence and has not been heard from by close relatives. (
                  13
               ) The absence of a person requires special legal rules to protect the rights of the absent person, in so far as ‘an absent person is, in the eyes of the law, neither dead nor alive’. (
                  14
               ) The absent person is, first, presumed alive before being, second, presumed dead. (
                  15
               ) In practical terms, the absence of a person therefore concerns only the physical absence of that person. The expression ‘except in case of sickness or accident’ used in the first paragraph of Article 60 of the Staff Regulations illustrates the intention of the EU legislature to refer to situations in which the official is not physically present at his or her place of work due to inability to work, which is sometimes immediate. (
                  16
               )
         
      
            45.
         
         
            I observe, in the second place, that the first paragraph of Article 60 of the Staff Regulations refers only to the ‘absence’ of the official without any further clarification as to the official’s conduct, competence or performance during the period of work.
         
      
            46.
         
         
            In addition, an official is considered to be in a situation of ‘unauthorised absence’ on the sole ground that he or she has not obtained prior permission from his or her immediate superior. No reference is made to any failure on the part of the official to comply with his or her professional obligations during working time within the meaning of Articles 21 and 55 of the Staff Regulations.
         
      
            47.
         
         
            In that regard, I note that the nature of the measures provided for in the first paragraph of Article 60 of the Staff Regulations does not correspond to the object and purpose of the disciplinary measures set out in Article 9 of Annex IX to the Staff Regulations. The measures that may apply in the event that an official is considered to be in a situation of unauthorised absence are briefly set out by the EU legislature. The deduction of annual leave or, if he or she has used up his or her annual leave, the forfeit of remuneration for an equivalent period are measures which, by reason of their nature and effect, are intended to compensate for the physical absence of the official and not to reprimand him or her for his or her misconduct, incompetence or unavailability during the period of work. As the General Court noted in its judgment of 8 July 1998, Aquilino v Council, (
                  17
               ) the aim is to recover ‘the financial equivalent’ of the official’s absence from his or her salary. (
                  18
               )
         
      
            48.
         
         
            Moreover, the expression ‘without prejudice to any disciplinary measures that may apply’ used in the first paragraph of Article 60 of the Staff Regulations very clearly demonstrates the intention of the EU legislature not to confuse the application of the rules set out in the first paragraph of Article 60 of the Staff Regulations with the application of disciplinary measures set out in Article 86 of the Staff Regulations. Accordingly, the adoption of the measures provided for in the first paragraph of Article 60 of the Staff Regulations, which are intended to offset, by a mirror effect, the official’s unauthorised absence against his or her annual leave or, if he or she has used up his or her annual leave, by forfeiting his or her remuneration, does not preclude disciplinary proceedings or the adoption of disciplinary measures within the meaning of Article 86 and Annex IX to the Staff Regulations if his or her conduct, over and above his or her absence, justifies it.
         
      
            49.
         
         
            In the light of the foregoing, I take the view that the interpretation adopted by the General Court in paragraph 79 of the order under appeal with regard to the scope of the first paragraph of Article 60 of the Staff Regulations and, in particular, the concept of ‘absence’ of an official, has no basis in the wording of that provision.
         
      
            50.
         
         
            Having regard to the scheme and objectives of the text of the Staff Regulations, I take the view that the wording of the first paragraph of Article 60 thereof confirms that the absence of an official must be assessed in the light of his or her physical presence in the work place and not with regard to his or her competence, performance and conduct during the period of work.
         
      
      2. The scheme and objectives of the Staff Regulations
   
   
            51.
         
         
            Article 60 appears in Title IV of the Staff Regulations, entitled ‘Working conditions of officials’.
         
      
            52.
         
         
            Title IV of the Staff Regulations comprises three chapters. Chapter 1 relates to ‘hours of work’, Chapter 2 concerns ‘leave’ and Chapter 3 covers ‘public holidays’. The Staff Regulations therefore clearly distinguish between the official’s working time covered by the first chapter – working time during which the official is present at his or her place of work – and the time during which the official is absent from the workplace because of leave taken pursuant to Chapter 2 or public holidays covered by Chapter 3.
         
      
            53.
         
         
            Article 60 of the Staff Regulations is part of Chapter 2 devoted to ‘leave’. (
                  19
               )
         
      
            54.
         
         
            The articles which precede it – namely Articles 57 to 59 of the Staff Regulations – establish the different types of leave to which an official is entitled in the performance of his or her employment contract. All concern situations in which an official has entered a period of occupational inactivity and is not physically present at his or her place of work. The purpose of annual leave under Article 57 of the Staff Regulations is to ensure that officials are entitled to actual rest and enjoy a period of relaxation and leisure. (
                  20
               ) Maternity leave, established in Article 58 of the Staff Regulations, is intended to protect the official during her pregnancy and the period which follows childbirth, by preventing the multiple burdens which would result from the simultaneous pursuit of employment. (
                  21
               ) Leave in case of sickness or accident, set out in Article 59 of the Staff Regulations, also guarantees a period during which the worker is not required to be physically present at his or her place of work so that he or she can recover from an illness or accident that has caused him or her to be unfit for work. (
                  22
               )
         
      
            55.
         
         
            Article 60 of the Staff Regulations follows on from those provisions.
         
      
            56.
         
         
            By requiring the official to obtain permission from his or her immediate superior in order to be absent from his or her place of work, apart from in the case of sickness or accident, that article aims to reconcile the absence of the official with the exigencies of his or her service and, where applicable, the requirement to comply with joint sickness insurance scheme rules.
         
      
            57.
         
         
            In view of the purpose and place occupied by that article within Chapter 2 – it is the final provision – the rule it lays down and the measures it provides for are, in my opinion, intended to apply in the event that an official is absent or is required to be absent from his or her place of work. The measures it lays down are therefore the mere consequence of the official’s unauthorised absence from his or her place of work. In so far as the absence is calculated as a number of days or half days, the measure referred to in the first paragraph of Article 60 of the Staff Regulations involves deducting the corresponding number of days or half days from the number of days’ leave remaining or, where appropriate, from the remuneration of the official in question.
         
      
            58.
         
         
            Such a scheme is not therefore intended to manage or penalise the official’s conduct or the work that he or she has actually and effectively completed during his or her ‘working time’.
         
      
            59.
         
         
            It follows from the case-law developed by the Court in the context of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time, (
                  23
               ) applicable to institutions, (
                  24
               ) that the concepts of ‘working time’ and ‘rest periods’ are mutually exclusive. (
                  25
               ) As noted by the Court, the concept of ‘working time’ is defined as any period during which the worker is working, at the employer’s disposal and carrying out his or her activity or duties, in accordance with national laws and/or practice. (
                  26
               )
         
      
            60.
         
         
            In the context of the European civil service, I note that Article 21 of the Staff Regulations is expressly included in Title II thereof concerning ‘rights and obligations of officials’ in the context of the performance of their employment contract and imposes a duty to assist and to tender advice to his or her superiors and to perform the duties assigned to him or her. As for Article 55 of the Staff Regulations, it falls within Title IV of the Staff Regulations relating to the working conditions of officials, and, in particular, in the first chapter of that title, entitled ‘Hours of work’. Article 55 defines the scope of the obligation on the part of the official to be available during the normal working week during which he or she carries out his or her activity or duties. It is apparent from the case-law that the duty to be at the disposal of the institution, within the meaning of Article 55 of the Staff Regulations, covers the physical and temporal availability of the official. (
                  27
               )
         
      
            61.
         
         
            An official who fails to comply with such obligations during his or her ‘working time’, in so far as he or she fails to perform the tasks entrusted to him or her in accordance with the requirements set out in Articles 21 and 55 of the Staff Regulations, is not covered by the rules provided for by the first paragraph of Article 60 of the Staff Regulations, but rather the disciplinary measures laid down in Article 86 of the Staff Regulations.
         
      
            62.
         
         
            They are two separate schemes the implementation of which results from specific circumstances and leads to the adoption of measures and, where appropriate, penalties the nature and effects of which are manifestly different.
         
      
            63.
         
         
            I note that the institution of disciplinary proceedings falls within the scope of the rules set out in Annex IX to the Staff Regulations which provide for procedural safeguards for officials. I also note that the withholding of an official’s salary is not one of the disciplinary measures provided for by the EU legislature in Article 9 of that annex. Unlike the situation in which an official is criticised for being absent without authorisation from his or her place of work, it is not possible to quantify a possible breach of professional obligations, which is why the penalty is determined in the light of criteria expressly set out in Article 10 of Annex IX to the Staff Regulations and, in particular, with regard to its nature and seriousness.
         
      
            64.
         
         
            I therefore take the view that to consider an official who is present at his or her place of work but who performs his or her duties badly, or is even guilty of insubordination, to be in a situation of unauthorised absence and, accordingly, that deductions may be made from his or her salary or number of days’ leave amounts to misapplication of disciplinary measures. Such an incorrect classification of ‘unauthorised absence’ results in the imposition on the official of disciplinary measures not provided for by the Staff Regulations and without the benefit of the necessary safeguards provided by disciplinary proceedings conducted in accordance with the law.
         
      
            65.
         
         
            Taking account of these factors, I consider that the General Court erred in law in the order under appeal, in so far as it held that the EEAS could consider the applicant to be in a situation of unauthorised absence within the meaning of the first paragraph of Article 60 of the Staff Regulations on account of her failure to comply with her professional obligations under Articles 21 and 55 of the Staff Regulations and make, in respect of the official concerned, deductions from her remuneration.
         
      
            66.
         
         
            In view of all the considerations set out above, I propose that the Court finds the first complaint of the fifth part of the single ground of appeal to be well founded.
         
      
      VII. Conclusion
   
   
            67.
         
         
            In the light of the foregoing considerations, I propose that the Court finds the first complaint of the fifth part of the single ground of appeal put forward by WV to be well founded.
         
      (
         1
      )	Original language: French.
   (
         2
      )	Erwin Schrödinger was an Austrian physicist who, in 1935, devised a thought experiment also called ‘Schrödinger’s Cat Paradox’ to illustrate the limits of quantum mechanics which considers that a particle may exist in two states at the same time. He imagined a cat being placed in a sealed box with a flask which diffuses a deadly gas when triggered by the decay of an atom. If the box remains closed and since the decay of the atom is uncertain, you never know whether or not the atom has decayed. The atom exists in two states at the same time: decayed and not decayed. The same is true of the cat, which is in two states at the same time: dead and alive. On the other hand, if the box is opened, the cat is observed in a single state: dead or alive. Schrödinger wanted to demonstrate that what is possible in quantum physics for atoms is not possible when it comes to a familiar subject like a cat.
   (
         3
      )	T‑471/18, not published, EU:T:2020:26; ‘the order under appeal’.
   (
         4
      )	‘the contested decision’.
   (
         5
      )	See, by way of illustration, judgments of 18 March 1975, Acton and Others v Commission (44/74, 46/74 and 49/74, EU:C:1975:42), or of 16 December 2010, Lebedef v Commission (T‑364/09 P, EU:T:2010:539).
   (
         6
      )	In the judgment of 9 March 2021, Stadt Offenbach am Main(Period of stand-by time of a firefighter) (C‑580/19, EU:C:2021:183, paragraph 35), the Court held that ‘the workplace must be understood as any place where the worker is required to exercise an activity on the employer’s instruction, including where that place is not the place where he or she usually carries out his or her professional duties’.
   (
         7
      )	‘the decision rejecting the complaint’.
   (
         8
      )	See paragraph 61 of the order under appeal.
   (
         9
      )	See, in that regard, linguistic versions of Article 59(1), second and third paragraphs, of the Staff Regulations.
   (
         10
      )	See judgment of 17 December 2020, BAKATI PLUS (C‑656/19, EU:C:2020:1045, paragraph 39 and the case-law cited).
   (
         11
      )	See, for example, the Spanish- (‘ausentarse’, ‘ausencia’), English- (‘absent’, ‘absence’), Italian- (‘assentarsi’, ‘assenza’), Portuguese- (‘ausentar-se’, ‘ausência’) and Romanian- (‘absenta’, ‘absență’) language versions.
   (
         12
      )	Larousse dictionary definition.
   (
         13
      )	See, in that regard, Article 112 of the French Civil Code which provides that: ‘where a person has ceased to appear at the place of his domicile or residence and has not been heard from, the court dealing with guardianship matters can, on the application of the parties concerned or of the State prosecutor, establish that there is presumption of absence’.
   (
         14
      )	See Bellis, K., ‘La personnalité juridique et le cas de l’absent: le principe de l’unicité du patrimoine n’a pas dit son dernier mot’, Revue Juridique de l’Ouest, Persée, Paris, 2015, No 1, pp. 9-46, in particular paragraph 31 and footnote 127, which refers to Fenet, P.A., Recueil complet des travaux préparatoires du Code civil, Hachette, Paris, 1836, Volume 8, p. 373.
   (
         15
      )	The legal rules applicable to absence are different to those applicable in the event of disappearance, which are based on a presumption of death, and those applicable to death, which mark the end of legal personality.
   (
         16
      )	See judgment of 4 October 2018, Dicu (C‑12/17, EU:C:2018:799, paragraph 32).
   (
         17
      )	T‑130/96, EU:T:1998:159.
   (
         18
      )	See judgment of 8 July 1998, Aquilino v Council (T‑130/96, EU:T:1998:159, paragraph 71).
   (
         19
      )	In everyday language, the concept of ‘leave’ covers the period during which the worker is authorised to stop work temporarily during, for example, a holiday or because of sickness. The concept of ‘leave’ differs to that of ‘public holidays’ covered by Chapter 3 in respect of which a worker is not expected to obtain prior permission before being absent from his place of work.
   (
         20
      )	See, in that regard, judgments of 6 November 2018, Kreuziger (C‑619/16, EU:C:2018:872, paragraph 40 and the case-law cited), and of 4 June 2020, Fetico and Others (C‑588/18, EU:C:2020:420, paragraph 33 and the case-law cited).
   (
         21
      )	See, inter alia, judgment of 18 November 2020, Syndicat CFTC (C‑463/19, EU:C:2020:932, paragraph 52 and the case-law cited).
   (
         22
      )	See, inter alia, order of 21 February 2013, Maestre García (C‑194/12, EU:C:2013:102, paragraph 18 and the case-law cited).
   (
         23
      )	JO 2003 L 299, p. 9.
   (
         24
      )	See judgment of 19 September 2013, Review Commission v Strack (C‑579/12 RX‑II, EU:C:2013:570, paragraph 43), and Article 1e(2) of the Staff Regulations.
   (
         25
      )	See, judgment of 21 February 2018, Matzak (C‑518/15, EU:C:2018:82, paragraph 55 and the case-law cited).
   (
         26
      )	See judgment of 9 March 2021, Stadt Offenbach am Main(Period of stand-by time of a firefighter) (C‑580/19, EU:C:2021:183, paragraph 29 and the case-law cited).
   (
         27
      )	See, judgment of 21 April 1994, Campogrande v Commission (C‑22/93 P, EU:C:1994:164, paragraphs 19 and 20).