JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

28 June 2016

Andrea Lorenzet

v

European Aviation Safety Agency (EASA)

‛Civil service — Members of the temporary staff — Article 2(f) of the CEOS — Contract for an indefinite period — Unpaid leave — Leave on personal grounds — Refusal to extend unpaid leave for a further year — Article 52 of the CEOS’

Application:

under Article 270 TFEU, in which Mr Andrea Lorenzet seeks annulment of the decision by which the European Aviation Safety Agency (EASA or ‘the Agency’) refused to renew his unpaid leave.

Held:

The action is dismissed. [As corrected by the order of 13 July 2016.] Mr Andrea Lorenzet is to bear his own costs and is ordered to pay the costs incurred by the European Aviation Safety Agency.

Summary

1. Officials — Members of the temporary staff — Unpaid leave — Expiry — Refusal to extend — Incompatibility with interests of the service — Obligation on the administration to demonstrate the existence of a current and pressing need — None

   (Conditions of Employment, Arts 17 and 52)

2. Officials — Members of the temporary staff — Unpaid leave — Compelling personal grounds — Definition

   (Conditions of Employment, Arts 17 and 52)

1.  In the case of refusal to extend unpaid leave for a further year, the fourth paragraph of Article 52 of the Conditions of Employment of Other Servants of the European Union establishes a mechanism designed to protect both a staff member’s right to be reinstated within the agency with which he concluded a contract of employment for an indefinite period and the agency’s interest in benefiting from the services of the staff members to whom it has offered such a contract or, if the staff member decides not to return to the agency, in engaging another member of staff in his place. The obligation on the agency to offer the staff member concerned, within a reasonable period, a post corresponding to his grade and functions involves a concomitant duty on the staff member to return to the agency and accept such a post or to incur the consequences of his refusal.

   It follows that, even if the staff member is able to demonstrate the existence of compelling personal grounds that justify the granting of renewal of unpaid leave, in the same way as the granting of the initial unpaid leave, such renewal may be granted only if the leave sought is compatible with the interest of the service. If that is not the case, the agency is required to refuse the application for unpaid leave, or for renewal of such leave, which, according to the first paragraph of Article 17 of the Conditions of Employment, may be granted only in exceptional circumstances and, unlike the provision made for granting an official leave on personal grounds, or renewing such leave, only where there are compelling personal grounds. In those circumstances, in order for the agency to be able to refuse renewal it is by no means necessary for it to demonstrate an urgent need in the form of a vacant post which can only be filled by reinstating the staff member on leave.

   Similarly, the limitation of any period of unpaid leave to one year shows that the agency is required to evaluate the interest of the service when assessing each application for renewal and that even if the grounds which had justified granting the initial unpaid leave have remained strictly the same, the interest of the service may have changed in the meantime in a way that is favourable or unfavourable to continuing the unpaid leave of the staff member concerned.

   Lastly, it is necessary to apply with regard to applications for unpaid leave the case law under which, when the institutions are presented with an application for leave on personal grounds, they enjoy a very extensive power of appraisal with regard both to the validity of the grounds advanced by the official wishing to be granted such leave and the compatibility of granting the leave with the interests of the service.

   It follows that it is perfectly permissible for an agency to decide not to renew unpaid leave on grounds of requirements relating to its internal organisation, without being required to demonstrate the existence of a current and pressing need.

   (see paras 51-55)

   See:

   Judgment of 16 December 1976 in Mascetti v Commission, 2/76, EU:C:1976:187, para. 5

2.  The concept of ‘compelling personal grounds’, within the meaning of Article 17 of the Conditions of Employment of Other Servants of the European Union, must not be interpreted as being the same or equivalent to that of ‘personal grounds’, within the meaning of Article 40 of the Staff Regulations. From the semantic point of view, the use of the words ‘compelling personal grounds’ means that the staff member must demonstrate particularly significant constraints of a personal nature, beyond his control, which justify the granting of unpaid leave by way of an exception, and that he is not acting entirely according to his own wishes. On the other hand, the concept of ‘personal grounds’ covers a wide variety of grounds, both personal and professional, that may justify an application for leave on personal grounds, without the need for the official concerned to demonstrate that his application is in response to any constraint.

   In any event, from a legal perspective, the intention of the legislature to lay down different conditions for granting unpaid leave from those for granting leave on personal grounds is apparent from the fact that in the former case the staff member concerned must demonstrate the existence of compelling personal grounds, whilst in the second case, mere personal grounds are sufficient. Furthermore, it is clear from the actual wording of the first paragraph of Article 52 of the Conditions of Employment that the derogation that article contains from the application of the third paragraph of Article 17 of the Conditions of Employment for members of the temporary staff covered by Article 2(f) of the Conditions of Employment and whose contract is for an indefinite period, concerns only the duration of the leave.

   Next, the need for an application for unpaid leave to be justified on compelling personal grounds is clearly provided for in Article 17 of the Conditions of Employment and there is nothing in the wording of Article 52 of those Conditions of Employment to state that that provision is not applicable to temporary staff members employed by agencies under a contract for an indefinite period.

   Moreover, as is clear from the wording of Article 52 of the Conditions of Employment of Other Servants of the European Union, temporary staff referred to in Article 2(f) of those Conditions of Employment with a contract for an indefinite period ‘may’ be granted unpaid leave. The staff concerned do not therefore have a right to be granted such leave.

   (see paras 65-68)

   See:

   Judgment of 16 December 1976 in Mascetti v Commission, 2/76, EU:C:1976:187, para. 6