JUDGMENT OF THE COURT OF FIRST INSTANCE (Single Judge)

14 December 2000

Case T-352/99

M

v

Commission of the European Communities

‛Officials — Sick leave — Leave regarded as unauthorised — Deduction from annual leave entitlement — Articles 59 and 60 of the Staff Regulations — Refusal of medical certificate — Absence of fewer than 4 days — Effects of medical examination’

Full text in French   II-1367

Application for:

annulment of the Commission's decision of 9 February 1999 considering the applicant's absences from 8 to 17 December 1998 and of 25 January 1999 to have been unauthorised and deducting them from annual leave entitlement.

Held:

the Commission's decision of 9 February 1999 considering the applicant's absences from 8 to 17 December 1998 and of 25 January 1999 to have been unauthorised and deducting them from annual leave entitlement is annulled. The Commission is to bear all the costs.

Summary

1. Officials — Sick leave — Proof of illness — Production of a medical certificate — Certificate drawn up a posteriori — Admissible in certain circumstances

   (Staff Regulations, Arts 59 and 90)

2. Officials — Sick leave — Proof of illness — Obligation to produce a certificate for an absence of fewer than 4 days — None

   (Staff Regulations, Art. 59(1))

1.  The administration may refuse to accept a medical certificate as valid and find that the absence of the official concerned is unauthorised only if it has subjected him beforehand to a medical examination, the findings of which take effect for administrative purposes only as from the date of that examination. The duty of the institutions to arrange a medical examination necessarily has as its corollary a duty on the part of the officials concerned, if Articles 59 and 60 of the Staff Regulations are not to be rendered ineffective, to submit to those institutions, as soon as possible, certificates showing with sufficient clarity and beyond all argument the incapacity which they may intend to invoke.

   In that context, a certificate forwarded on the second working day after the return to work of the official concerned and within 10 days after its production was required may justify sick leave. The fact that a certificate submitted in such a period is drawn up after the period of sick leave does not necessarily rule out its ability to justify the absence of the official concerned.

   (see paras 30-32)

   See: T-29/96 Schoch v Parliament [1997] ECRSC I-A-219 and II-635, paras 38 and 39

2.  An official who has notified his institution of his incapacity because of illness or accident, in accordance with the second paragraph of Article 59(1) of the Staff Regulations, is required to produce a medical certificate only from his fourth day of absence, subject to the application of the third paragraph of that provision.

   An institution errs in law where it considers that it is entitled to require a medical certificate for a period of absence of fewer than 4 days, qualifies such an absence as irregular and deducts it from the official's annual leave entitlement on the ground that it is not justified by a medical certificate.

   (see paras 46-48)

   See: T-135/95 Z v Commission [1996] ECRSC I-A-519 and II-1413, paras 32 and 33; Schoch v Parliament, cited above, para. 38