The right to postpone annual leave in case of illness

The Court of Justice requires the Commission to apply the basic principles of European employment law and the dispositions of the EU’s Charter of Fundamental Rights to its own staff!

 

The Court has recently delivered a judgement of historical importance which constitutes a decisive step in putting an end to the approach “do what I say, not what I do!”

 

R&D’s position

 

R&D has always asked the Commission to put an end to its somewhat schizophrenic position, and finally to respect the basic principles of European employment law which are enshrined in the Charter of Fundamental Rights in its personnel policies, as well as the guarantees offered to other employees by European Directives. It is exactly this that the Court has just brought to the attention of our institution.

The Commission has always maintained that the Directives apply to Member States and not to EU institutions and that consequently their dispositions could not be considered as imposing the same obligations on it towards their staff.

By this means, staff find themselves deprived of the rights and guarantees that EU institutions had imposed on Member States for European workers.

For R&D, the question was never one of  being unaware of the sometimes dramatic situation of workers in Europe, nor to deny that the conditions offered by our Staff Regulations –  even heavily worsened after 2004 – remain quite favourable for permanent staff.  This is however not the case for our Contractual Agent colleagues.

For R&D, the question has always been the requirement for the institutions to stay credible and notably for the Commission in its role as guardian of the Treaties  to end its approach of “do what I say, not what I do”.

Over the course of the years, this dichotomy has produced some quite aberrant situations which have resulted in our institution criticising, sometimes very severely, Member States – to the point of dragging them in front of the Court – the practices that it itself however applied to its own staff! 

 

The Court’s judgement

 

The Court, acting to re-examine the judgement of the TPI T-268/11P in the context of its role looking to guarantee the unity and coherence of EU Law has put an end to this hypocrisy and finally recognises the application of EU Employment Law to EU staff!

In particular, as an example of the issue, a Civil Servant complained about the Commission’s decision to refuse, (on the basis of Article 4 of Annex V of the Staff Regulations) his request to carry-over more than 12 days of untaken leave due notably, to work-related illness.

We must remind ourselves, on this topic, that R&D has always said that it is unworthy to deprive staff who are absent on long-term sick leave of the possibility of carrying-over more than 12 days of annual leave when they were unable to take advantage of them because of their illness.

The Court, however, has annulled the TPI’s decision on appeal and has required the Commission to respect Article 7 of Directive 2003/88 recognising the right of all workers to paid annual leave as a principle of EU employment law which takes on particular importance now expressly enshrined in Article 31, paragraph 2, of the Charter of Fundamental Rights.

 

The Court reminds us that, according to a general principle of interpretation, an EU Act and thus our Staff Regulations as well, must be interpreted, as far as possible, in such a way as not to bring into question its validity and its conformity with primary law as a whole, and notably with the dispositions of the Charter.

 

Thus the Court confirms that the right to paid annual leave implies, notably, that any worker who has been unable to take the leave because of long-term sick leave can benefit from a postponement of that right, without having it reduced and the carry-over period can substantially exceed the duration of the reference period for which it is accorded, and the conditions put in place to avoid unlimited accumulations of untaken leave cannot be a obstacle.

In the same way, the conditions put in place to protect the EU’s financial interests cannot, for any purpose, be invoked to justify removing the said right to paid annual leave. The Commission thus cannot deprive a staff member who is absent on long-term sick of his or her right to postpone annual leave.

 

R&D is asking the Commission to draw the conclusions of this judgement without delay and in particular:

 

– to correct the rules in the matter of postponements of leave reset out under point III.e of the Commission’s decision of 5/11/2010;

– to look again at the decisions not to accept a delay in annual leave taken since the cancelled judgement in situations similar to the one which is the subject of the Court’s judgement, given its exceptional character.  

 

R&D will not fail to take account of the principles recognised by the Court in this judgement in the framework of its negotiations and legal actions for the defence of the rights of staff members.

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