JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (First Chamber)

17 June 2008

Case F-97/07

Chantal De Fays

v

Commission of the European Communities

(Civil service – Officials – Sick leave – Unauthorised absence – Arbitration procedure)

Application: brought under Articles 236 EC and 152 EA, in which Mrs De Fays seeks, in particular, annulment of the Commission’s decision of 21 June 2007 rejecting her complaint against the decision of 21 November 2006 determining that she had been absent from the service without authorisation from 19 October 2006 and that she was therefore to forfeit her salary for the period of unauthorised absence exceeding her annual leave entitlement.

Held: The application is dismissed. The parties are to bear their own costs.

Summary

1.      Procedure – Introduction of new pleas during the proceedings – Conditions

(Rules of Procedure of the Civil Service Tribunal, Arts 35(1)(d) and (e) and 43)

2.      Officials – Sick leave – Medical examination – Conclusions of the medical examination disputed

(Staff Regulations, Arts 59(1), fifth subpara., and 60, first para.)

3.      Officials – Sick leave – Medical examination – Finding that absence was unauthorised

(Staff Regulations, Arts 59(1), fourth and fifth subparas., and 60, first para.)

1.      It follows from Article 35(1)(d) and (e) in conjunction with Article 43 of the Rules of Procedure of the Civil Service Tribunal that the application must contain the subject-matter of the proceedings and the pleas and arguments of fact and of law relied on by the applicant, and that new pleas in law may not be introduced in the course of the proceedings unless they are based on matters of law or of fact which come to light in the course of the procedure. However, a submission which may be regarded as amplifying a plea made previously, whether directly or by implication, in the application, and which is closely connected therewith, will be declared admissible .

(see para. 53)

See:

F-16/05 Falcione v Commission [2006] ECR-SC I‑A‑1‑3 and II‑A‑1‑7, para. 65; F-87/05 Ott and Others v Commission [2006] ECR-SC I‑A‑1‑73 and II‑A‑1‑263, para. 74

2.      The arbitration procedure involving an independent doctor referred to in the fifth subparagraph of Article 59(1) of the Staff Regulations, which is open to an official intending to challenge the conclusions of his medical examination, reflects the desire of the Community legislature to clarify the procedures for monitoring absence and the production of medical certificates. It would be contrary to that aim if an official could legitimately criticise the conclusions of a medical examination outside the procedure specially designed for that purpose, even in support of an action against a measure such as one taken on the basis of the first paragraph of Article 60 of the Staff Regulations in the event of unauthorised absence.

(see para. 56)

3.      It is clear from the wording of the fourth subparagraph of Article 59(1) and the first paragraph of Article 60 of the Staff Regulations that where the administration receives the conclusions of a medical examination showing that the official is able to carry out his duties, it is obliged to consider the official’s absence as unauthorised from the day of the examination, that absence must be deducted from the annual leave of the official concerned and, if he has used up that leave, he must forfeit his remuneration for an equivalent period. Once the authority dealing with the case has verified that the official has not requested that the medical examination be the subject of arbitration by an independent doctor under the conditions provided for in the fifth subparagraph of Article 59(1) of the Staff Regulations, it has a mandatory duty to take those measures. Consequently, the annulment of those measures on the ground that the authority had no power to take them would result only in the adoption of a decision having the same substance, once that defect was rectified on the date when it occurred.

(see para. 70)

See:

C-111/02 P Parliament v Reynolds [2004] ECR I‑5475, paras 59 to 61