1.

Article 31(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’) guarantees the right to a period of paid leave, but does not regulate its duration. How then is it possible to assess a new regime under which EU staff are entitled to much less leave than they were granted in the past?

2.

That is the central issue in these appeals, which concern, first, the method and scope of the review of fundamental rights and, second, the judicial scrutiny of the weighing exercise undertaken by the legislature.

3.

Article 31(2) of the Charter, which relates to fair and just working conditions, provides:

‘Every worker has the right … to an annual period of paid leave.’

4.

According to the Explanations relating to the Charter of Fundamental Rights, ( 2 ) Article 31(2) ‘is based on Directive 93/104/EC concerning certain aspects of the organisation of working time, Article 2 of the European Social Charter and point 8 of the Community Charter on the rights of workers’.

5.

The European Social Charter was adopted in 1961 within the framework of the Council of Europe ( 3 ) and entered into force in 1965. The revised version of 1996 ( 4 ) entered into force in 1999. All the Member States have ratified one of the two versions, both of which provide for a right to an annual period of paid leave in Article 2:

‘With a view to ensuring the effective exercise of the right to just conditions of work, the Parties undertake … to provide for a minimum of four weeks’ annual holiday with pay …’

6.

The Community Charter of the Fundamental Social Rights of Workers ( 5 ) was adopted by the European Council in 1989. ( 6 ) The rules on the improvement of living and working conditions in Title I on fundamental social rights include, in point 8, the right to annual paid leave:

‘Every worker of the European Community shall have a right to a weekly rest period and to annual paid leave, the duration of which must be progressively harmonised in accordance with national practices.’

7.

The general provision in Article 1e(2) of Regulation No 31 laying down the Staff Regulations of Officials ( 7 ) (‘the Staff Regulations’) states:

‘Officials in active employment shall be accorded working conditions complying with appropriate health and safety standards at least equivalent to the minimum requirements applicable under measures adopted in these areas pursuant to the Treaties.’

8.

Title IV on working conditions of officials contains Chapter 2 on leave for officials. The first paragraph of Article 57 provides:

‘Officials shall be entitled to annual leave of not less than twenty-four working days nor more than thirty working days per calendar year, in accordance with rules, to be laid down by common accord of the appointing authorities of the institutions of the Union, after consulting the Staff Regulations Committee.’

9.

Annex X to the Staff Regulations contains special and exceptional provisions applicable to officials serving in a third country. Until 31 December 2013, an official was entitled, per calendar year, to annual leave of three and a half working days for each month of service.

10.

By Regulation No 1023/2013 of 22 October 2013, ( 8 ) Article 6 of Annex X was amended as follows:

‘An official shall, per calendar year, be entitled to annual leave of two working days for each month of service.

Notwithstanding the first paragraph of this Article, officials posted already in a third country on 1 January 2014 shall be entitled to:

11.

Recital 27 of Regulation No 1023/2013 states in this regard:

‘It is appropriate to modernise working conditions for staff employed in third countries and to render them more cost-effective whilst generating cost savings. Annual leave entitlements should be adjusted …’

12.

Article 8 of Annex X to the Staff Regulations makes provision for special rest leave:

‘By way of exception, the appointing authority may, by special reasoned decision, grant an official rest leave on account of particularly difficult living conditions at his place of employment. For each such place, the appointing authority shall determine the town(s) where rest leave may be taken.

Officials who take part in professional training courses pursuant to Article 24a of the Staff Regulations and who have been granted rest leave pursuant to the first paragraph of this Article shall undertake, where appropriate, to combine their periods of professional training with their rest leave.’

13.

Directive 93/104/EC concerning certain aspects of the organisation of working time ( 9 ) was repealed by the Working Time Directive. ( 10 )

14.

According to recital 4 of the Working Time Directive, the improvement of workers’ health at work is an objective which should not be subordinated to purely economic considerations.

15.

Article 7(1) of the Working Time Directive provides for annual leave of at least four weeks:

‘Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice.’

16.

The applicants before the General Court, Mr Carreras Sequeros and Others (‘the applicants’), are officials or contract staff of the European Commission. They were all posted in third countries and were already posted in a third country before 1 January 2014.

17.

The applicants were allocated 36 days of annual leave for 2014, compared with 42 the previous year, in accordance with the second paragraph, first indent, of the new Article 6 of Annex X to the Staff Regulations. The complaints submitted in this regard by the applicants were rejected by the appointing authority or the authority empowered to conclude contracts of employment, as appropriate, by decisions which were all couched in the same terms.

18.

The applicants therefore brought an action before the European Union Civil Service Tribunal in which they claimed that the Tribunal should declare unlawful the new Article 6 of Annex X to the Staff Regulations and annul the decisions reducing their annual leave as from 2014.

19.

That action was subsequently transferred to the General Court. In those proceedings, the General Court granted the Council of the European Union and the European Parliament leave to intervene in support of the Commission.

20.

By judgment of 4 December 2018, Carreras Sequeros and Others v Commission (T‑518/16, EU:T:2018:873; ‘the judgment under appeal’), the General Court annulled the decisions reducing the number of days of annual leave for 2014 of the applicants.

21.

The General Court relied on the fact that, by its nature, the entitlement to annual leave referred to in Article 31(2) of the Charter is intended, in principle, to promote the improvement of the living and working conditions of workers. ( 11 ) The significant reduction in annual leave from 42 to 24 days in the space of three years cannot be regarded as consistent with the principle of promoting the improvement of the living and working conditions of the persons concerned. ( 12 ) It cannot be made up for by other privileges of the persons concerned ( 13 ) and no justification is evident. ( 14 ) In so far as reference is made to cost savings, it has already been held that considerations based on the need to protect the financial interests of the Union cannot be relied on to justify an adverse effect on the right to paid annual leave guaranteed by Article 31(2) of the Charter. ( 15 ) It is also not evident that the legislature sought to strike a reasonable balance between the objective of modernisation and the rights of the persons concerned. Consequently, the Commission was not entitled to rely on the new Article 6 of Annex X to the Staff Regulations in order to adopt the decisions at issue. ( 16 )

22.

The Commission (Case C‑119/19 P) and the Council (Case C‑126/19 P) brought appeals against the judgment under appeal, which were joined by the Court of Justice. In addition to its own appeal, the Council lodged a substantively identical cross-appeal to the appeal brought by the Commission.

23.

By order of 29 July 2019, Commission v Carreras Sequeros and Others and Council v Commission (C‑119/19 P and C‑126/19 P, not published, EU:C:2019:658), the President of the Court of Justice refused an application for leave to intervene made by the European External Action Service.

24.

The European Commission claims that the Court should:

25.

In its appeal and in its cross-appeal, the Council of the European Union claims that the Court should:

26.

The European Parliament claims that the Court should:

27.

Mr Carreras Sequeros and Others, on the other hand, contend that the Court should:

28.

The parties submitted written observations and presented oral argument at the hearing on 3 February 2020.

29.

The action before the General Court was, formally speaking, brought directly against the decisions determining the number of days of leave of the applicants for 2014. However, those decisions were the logical consequence of the new leave regime for officials in third countries under Article 6 of Annex X to the Staff Regulations. The applicants have therefore raised an objection of illegality pursuant to Article 277 TFEU against that new regime, over which the parties are in dispute before the General Court and in the present appeals.

30.

I will begin by explaining that the cross-appeal lodged by the Council is inadmissible and discussing the appellants’ submissions regarding the jurisdiction of the General Court. I will then address the criticisms as to the merits of the judgment under appeal.

31.

A particular feature of the present case is that both the Commission and the Council brought appeals against the judgment under appeal delivered by the General Court in the now Joined Cases C‑119/19 P and C‑126/19 P, but the Council also lodged a cross-appeal to the appeal brought by the Commission in Case C‑119/19 P, in which, with the same grounds of appeal, even with identical wording, it challenges the same judgment of the General Court which it has already contested by its own appeal in Case C‑126/19 P.

32.

It is possible to challenge a judgment concurrently by an appeal and a cross-appeal. ( 17 ) Because, however, an action brought subsequently to another which is between the same parties, is brought on the basis of the same submissions and seeks annulment of the same legal measure must be dismissed as inadmissible on the ground of lis pendens, ( 18 ) a party may also only bring one appeal against a judgment of the General Court on the basis of the same submissions. ( 19 )

33.

The cross-appeal lodged by the Council must therefore be dismissed as inadmissible.

34.

By its first ground of appeal, the Council alleges that the General Court erred in law regarding its jurisdiction. By that ground of appeal, the Council, first, complains that the General Court issued an order and, second, objects to the scope that the General Court attached to the objection of illegality.

35.

By the first part of its first ground of appeal, the Council, supported by the Commission and the Parliament, objects that the General Court designated the decision at issue, in substance, as a reduction of the number of days of annual leave of the applicants. It argues that the days of leave were not reduced, but rather determined in accordance with the applicable rules. By making this designation, the General Court implicitly issued the order to the Commission to allocate a certain number of days of leave to the applicants. However, the General Court has no jurisdiction to give any such order.

36.

As the Council itself concedes, however, the decisions at issue, namely the determination of the days of leave of the applicants in 2014, are not questionable. Irrespective of the designation of the annulled decisions, the effect of the General Court’s judgment stems from the first paragraph of Article 266 TFEU. Under that provision, in the case at issue in the main proceedings the Commission is required to take the necessary measures to comply with the judgment of the General Court, no more and no less. If the judgment under appeal were upheld in its entirety, the Commission would therefore no longer be permitted to apply the changes to the leave regime to the applicants and would be required to take decisions concerning them on the basis of the old regime. ( 20 )

37.

That objection is thus not really directed against a purported error made by the General Court in assessing its jurisdiction, but against the substantive decision, in particular the incidental finding in paragraph 112 of the judgment under appeal that the Commission was not entitled to rely on the new Article 6 of Annex X to the Staff Regulations in determining the number of days of leave of the applicants. I will examine below the extent to which that decision continues to be valid.

38.

In so far as it is directed against an alleged order made by the General Court, on the other hand, the first part of the first ground of appeal raised by the Council is based on a misinterpretation of the judgment under appeal and must therefore be rejected as unfounded.

39.

In the second part of the first ground of appeal, the Council, supported by the Commission and the Parliament, complains that the General Court extended the objection of illegality based on Article 277 TFEU to the entire leave regime laid down in Article 6 of Annex X to the Staff Regulations, including the rules for 2015 and as from 2016, even though the action only concerned decisions on leave entitlements in 2014.

40.

The intention of Article 277 TFEU is not to allow a party to contest at will the legality of any regulations in support of any application. The rules the legality of which is called in question must be applicable, directly or indirectly, to the issue with which the application is concerned. ( 21 ) This was clarified correctly by the General Court, which stated that the scope of an objection of illegality must be limited to what is necessary for the outcome of the proceedings. ( 22 )

41.

However, in paragraph 31 of the judgment under appeal the General Court advocated a sufficiently broad interpretation of Article 277 TFEU to enable effective judicial review of the legality of acts of the institutions of a general nature in favour of persons excluded from direct actions against such acts. Thus, the scope of Article 277 TFEU must extend to acts of the institutions which were relevant to the adoption of the decision forming the subject matter of the action for annulment. According to the General Court, it is therefore sufficient that that decision must essentially be based on such acts, even though they did not formally constitute the legal basis of that decision.

42.

These findings do not fully reflect the case-law of the Court of Justice, which considers a genuine judicial review on the basis of Article 277 TFEU to be necessary only if the applicants are affected by implementing decisions which are of direct and individual concern to them. ( 23 )

43.

If that case-law is applied strictly, the objection of illegality would appear to be restricted solely to the transitional regime for 2014 in the second paragraph, first indent, of Article 6 of Annex X to the Staff Regulations. The only subject matter of the proceedings is the determination of leave entitlements for that year, but not the determinations for the following years.

44.

In my view, the General Court’s arguments in paragraphs 32 to 35 of the judgment under appeal to the effect that the link between the different stages of the transitional regime and the definitive leave regime justifies extending the objection of illegality to all those regimes are not satisfactory. It would have been easily possible in fact to break this link and to restrict the examination of the objection to the first stage of the transitional regime. Moreover, this would not have prevented consideration being given to the transitional nature or the link with the definitive leave regime in the context of its objective.

45.

I nevertheless consider the approach taken by the General Court to be correct in essence. The objection of illegality cannot, formally speaking, result in the annulment of the regime to which objections have been raised indirectly and it also does not have any legal effects as between other parties. Nevertheless, a comprehensive appraisal in the case at issue would, in practice, clarify whether the contested regime may be applied, thereby having authority of precedent for similar disputes. It is also in the interest of the appointing authority to establish clarity as to the legality of the new leave rules as soon as possible. If the examination is limited to the regime for 2014, on the other hand, there would be a risk of further protracted legal disputes for the following years.

46.

Furthermore, an examination of the overall regime does not mean that the applicants’ power to make indirect challenges would be exceeded. The comprehensive examination of the new regime neither goes beyond the submissions of the applicants nor constitutes a new element. Rather, the applicants have consistently asserted in the present case that they would challenge the application of the new leave rules in future years. It seems irrelevant, in comparison, that two of the applicants are now no longer serving in third countries. ( 24 ) In addition, the definitive leave regime has also been contested in other cases, two other sets of proceedings concerning 2019 having been brought. ( 25 ) The final stage of the new regime would have to be debated in those cases at the latest.

47.

Against this background, I would not consider it appropriate to split the dispute concerning the new regime for leave entitlements into separate proceedings. This would merely consume unnecessarily the resources of the Courts of the European Union, as well as those of the parties. ( 26 )

48.

Consequently, the second part of the first ground of appeal raised by the Council must also be rejected as unfounded.

49.

Should the Court of Justice not concur with my view, the examination could conceivably be concluded at this point and the case referred back to the General Court, since it cannot be ruled out that the General Court would have reached a different conclusion if it had examined only the first stage of the transitional regime, which represents a much smaller reduction of leave entitlements.

50.

This approach does not seem reasonable, however, because it would merely further defer the decision on the underlying dispute. Accordingly, the Court should also deal with the other grounds of appeal. It should be noted in this regard that, in principle, the considerations hereinafter essentially apply irrespective of whether the action before the General Court is limited to the transitional regime for 2014. Although it would be conceivable that the assessment as to whether the remaining leave entitlements are sufficient produces different conclusions at the different stages of the new regime, I will explain below that there is no reason to call into question any of the stages. ( 27 )

51.

According to the General Court, the new regime is not compatible with the fundamental right to leave. However, it did not address the general principle of equal treatment, the principle of the protection of legitimate expectations and the right to respect for private and family life, on which the applicants had also relied.

52.

By its two grounds of appeal, the Commission thus takes issue with certain aspects of the examination of the fundamental right to leave under Article 31(2) of the Charter, namely the consideration of the Working Time Directive and the principle of the improvement of the living and working conditions of the persons concerned, but also the failure to take into consideration other entitlements of the applicants and the treatment of the regulatory discretion enjoyed by the legislature. The second and third grounds of appeal raised by the Council relate to similar points.

53.

The first part of the first ground of appeal raised by the Commission and the first part of the second ground of appeal raised by the Council concern the consideration of the Working Time Directive by the General Court.

54.

In the view of the Council, by ruling that in certain cases a directive (in this case the Working Time Directive) may be relied on against the EU institutions, the General Court, first, disregarded consistent case-law according to which directives are addressed to the Member States and not to the EU institutions. Provisions of a directive cannot therefore be treated as imposing any obligations on the institutions in their relations with their staff.

55.

The applicants are, however, correct in their view that this submission is ineffective. It contests statements made in paragraph 61 of the judgment under appeal, which do not support the judgment. The General Court expressly stated in paragraph 64 that the Working Time Directive cannot, either alone or together with Article 1e(2) of the Staff Regulations, ( 28 ) be relied on in support of an objection of illegality to declare the new Article 6 of Annex X to the Staff Regulations inapplicable.

56.

This submission by the Council must therefore be rejected.

57.

Second, in the view of the Council and the Commission, the General Court erred in law in ruling that the legislature is bound by the content of the Working Time Directive because it is referred to in the explanations of the Praesidium of the Convention relating to Article 31(2) of the Charter of Fundamental Rights.

58.

In fact, in paragraph 70 of the judgment under appeal the General Court ruled that the new Article 6 of Annex X to the Staff Regulations should be disapplied if it is shown to be incompatible with the right to annual leave, the nature and purpose of which follow from Article 31(2) of the Charter read in the light of the Working Time Directive. In this regard, in paragraphs 67 to 69 it relies on the explanations of the Praesidium of the Convention, according to which Article 31(2) of the Charter enshrines inter alia the substance of the Working Time Directive. The EU legislature could not disregard the content of that directive.

59.

These statements are vitiated by an error in law because they incorrectly describe the relationship between Article 31(2) of the Charter and the Working Time Directive.

60.

The explanations of the Convention relating to Article 31(2) of the Charter do state that the provision is based on the Working Time Directive. Furthermore, due regard is to be given to those explanations under Article 52(7) of the Charter and the third subparagraph of Article 6(1) TEU. ( 29 )

61.

This does not mean, however, that the entire Working Time Directive is incorporated into Article 31(2) of the Charter.

62.

As the Commission rightly asserts, only the minimum leave entitlement of four weeks under Article 7 of the Working Time Directive is laid down in Article 31(2) of the Charter. ( 30 ) More precisely, Article 7 of the Working Time Directive is a provision of EU law which specifies the exact duration of the annual leave guaranteed by Article 31(2) of the Charter. ( 31 )

63.

It needs to be given concrete expression because Article 31(2) of the Charter itself does not specify the duration of paid annual leave, which is a condition for its guarantee. The duration of leave thus differs from other guarantees under Article 31(2), such as payment during leave or the beneficiaries who are covered by the fundamental right without further concrete normative expression. ( 32 )

64.

The fundamental right to leave is therefore dependent, at least as regards the duration of paid annual leave, on concrete normative expression.

65.

Such dependence has consequences for the assessment of rules which, like the contested new regime, specify the duration of paid annual leave. Since such a regime is necessary to give practical effect to the fundamental right to leave, it cannot, by its nature, be regarded as a limitation of the fundamental right within the meaning of Article 52(1) of the Charter and is also therefore not directly subject to the obligations laid down in that provision.

66.

Although the specification of the duration of leave entitlement thus does not require any justification under Article 52(1) of the Charter, it must at least respect the principle of proportionality, which is one of the general principles of EU law. That principle requires that acts adopted by EU institutions do not exceed the limits of what is appropriate and necessary in order to attain the legitimate objectives pursued by the legislation in question; where there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued. ( 33 )

67.

In particular, other elements, such as the minimum period of leave under Article 7 of the Working Time Directive or the essence of the fundamental right to an annual period of paid leave, may be factored into the final weighing of the objectives and disadvantages of such specification. Here too, however, the directive as a whole has no relevance.

68.

It must therefore be concluded that the General Court erred in law in paragraphs 68 and 69 of the judgment under appeal in holding that the EU legislature is bound, in connection with Article 31(2) of the Charter, by the Working Time Directive in its entirety.

69.

This error in law does not, however, mean that the objections raised by the Commission and the Council are successful, as it does not result in the judgment under appeal being set aside. The General Court does not base its decision on an alleged infringement of the substantive guarantees provided by the Working Time Directive. Rather, it essentially rejects the applicants’ submissions concerning the various rules of the Working Time Directive.

70.

By the second part of the first ground of appeal, the Commission alleges an error in law in the interpretation of Article 31(2) of the Charter, as the General Court held that the reduction of the period of annual leave resulting from Article 6 of Annex X to the Staff Regulations is not compatible with a purported principle seeking the improvement of the living and working conditions of the persons concerned. There is no legal basis for any such principle.

71.

The Council likewise maintains, in the second part of its second ground of appeal, that the General Court misconstrued the meaning of Article 31(2) of the Charter. Contrary to the view taken by the General Court, that provision is not intended to improve living and working conditions, but rather to ensure an adequate level of protection for all workers in the European Union.

72.

In paragraph 88 of the judgment under appeal, the General Court states that, by its nature, the entitlement to annual leave referred to in Article 31(2) of the Charter is intended, in principle, to promote the improvement of the living and working conditions of workers. Furthermore, paragraph 90 states that the reduction in the number of days of leave cannot be regarded as consistent with the principle of promoting the improvement of the living and working conditions of the persons concerned.

73.

The Commission and the Council rightly submit in this regard that neither the wording of Article 31(2) of the Charter nor the explanations expressly refer to such a principle. Rather, as the Council in particular rightly states, Article 31 is headed ‘fair and just working conditions’.

74.

The General Court does nevertheless rely on EU law, as under the first paragraph of Article 151 TFEU the Union has as its objective, inter alia, improved living and working conditions. On account of its legal basis, now Article 153 TFEU, the Working Time Directive, including Article 7 thereof, seeks to achieve that objective. Furthermore, the objective underlies the Community Charter of the Fundamental Social Rights of Workers. The right to paid leave laid down in point 8 of that charter appears in the section headed ‘improvement of living and working conditions’. According to the explanations relating to the Charter, the fundamental right to leave is based, inter alia, on those two documents.

75.

The Court of Justice has at least recognised that the leave rules serve the purpose of the improvement of health and safety protection for workers. ( 34 ) They relate to specific living and working conditions.

76.

As regards the right to leave in particular, the applicants correctly assert that the duration of leave must be progressively harmonised in accordance with national practices, ( 35 ) thereby implying the objective of improvement.

77.

The finding made by the General Court in paragraph 88 of the judgment under appeal, in which it attributes the purpose of the improvement of living and working conditions to the entitlement to annual leave, is not therefore vitiated by an error in law.

78.

However, the General Court goes too far when, in paragraph 90, it refers to a principle, as there is no evidence of a principle either in the relevant documents or in case-law. It thus attached undue importance to the objective of the improvement of living and working conditions for the interpretation of the fundamental right to leave.

79.

The biggest problem is the General Court’s examination of respect for the objective. That objective likewise cannot mean that a reduction of leave entitlements is to be regarded as a limitation of the fundamental right to leave under Article 31(2) of the Charter.

80.

There is no need to determine here whether the objective of improved living and working conditions as such is binding on the Union under Article 151 TFEU in the specification of the conditions of employment of its staff. The General Court does not assess Article 6 of Annex X to the Staff Regulations by reference to Article 151 TFEU, but rather raises that objective in connection with Article 31(2) of the Charter. In paragraph 90 of the judgment under appeal, it states as the reason for the finding of a restriction of the fundamental right to leave and thus the need for a justification under Article 52(1) of the Charter that the significant reduction in leave entitlements under the new regime cannot be regarded as an improvement of living and working conditions.

81.

As I have already explained, however, the concrete normative expression of the duration of leave is not a restriction of the fundamental right to leave requiring a justification under Article 52(1) of the Charter. Instead, this necessary concrete expression should be assessed in the light of the principle of proportionality. ( 36 ) In the context of that principle, the objective of the improvement of living and working conditions is brought to bear only later, when the objective of the regime is weighed against the burdens associated with it.

82.

In so far as the interpretation of Article 31(2) of the Charter to the effect that a principle of the improvement of working conditions is enshrined therein and any deterioration of working conditions is thus to be regarded as a limitation of that fundamental right constitutes an error in law, however, this does not, as such, result in the judgment under appeal being set aside, since it cannot be ruled out that the examination of the justification for such interference produces the same conclusion as the examination of the proportionality of the concrete expression of that fundamental right. It would be sufficient in that case to substitute the grounds relied on by the General Court.

83.

By the third part of its first ground of appeal, the Commission contests the General Court’s reasoning in paragraphs 91 to 96 of the judgment under appeal in order to rebut arguments put forward against a restriction of the fundamental right to leave. The Council and the Parliament also challenge those statements.

84.

It is true, here too, that the method applied by the General Court in examining the fundamental right is not convincing. Whether those arguments and the General Court’s reasoning are relevant will need to be discussed in particular in connection with the weighing exercise.

85.

In relation to the proportionality test, and in particular the objective of the improvement of the living and working conditions of the persons concerned, the second ground of appeal raised by the Commission and the second part of the second ground of appeal and the third ground of appeal raised by the Council have particular importance.

86.

The Commission asserts that the General Court failed to recognise that the legislature has broad discretion when amending the Staff Regulations and that a breach of the principle of proportionality may be found only where the legislature has manifestly exceeded the limits of that discretion.

87.

Similarly, the Council stresses the need to allow the legislature to make compromises, whether in regard to leave or in regard to remuneration or working hours, in the light of changes in society, social progress and scientific and technological developments.

88.

The General Court expressly finds in paragraph 100 of the judgment under appeal, however, that the legislature enjoys a broad discretion to adapt the Staff Regulations and to modify at any time, even adversely, the rights and obligations of officials. ( 37 )

89.

This standard is consistent with settled case-law as regards judicial review of the implementation of the principle of proportionality in the field of EU legislation. In the exercise of the powers conferred on it, the legislature must be allowed a broad discretion in areas in which its action involves political, economic and social choices and in which it is called upon to undertake complex assessments and evaluations. Thus the criterion to be applied is not whether a measure adopted in such an area was the only or the best possible measure, since its legality can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue. ( 38 )

90.

The General Court does not, however, examine whether the new regime is appropriate but, in paragraphs 98 and 100 of the judgment under appeal, ascertains whether the legislature verified that the new regime in fact corresponds to objectives of public interest and does not constitute, in relation to the aim pursued, a disproportionate and intolerable interference, impairing the very substance of the rights guaranteed. It deals in particular with whether the legislature took the decision in full knowledge of the facts and following a detailed examination, carried out carefully and impartially, of all the relevant considerations.

91.

This too is largely consistent with case-law, as the legislature must base its choice on objective criteria. Furthermore, in assessing the burdens associated with various possible measures, it must examine whether objectives pursued by the measure chosen are such as to justify even substantial negative economic consequences for certain operators. ( 39 )

92.

Moreover, even judicial review of limited scope requires that the EU institutions that have adopted the act in question must be able to show before the Court that in adopting the act they actually exercised their discretion or that latitude, which presupposes the taking into consideration of all the relevant factors and circumstances of the situation the act was intended to regulate. ( 40 ) It follows that the institutions must at the very least be able to produce and set out clearly and unequivocally the basic facts which had to be taken into account as the basis of the contested measures of the act and on which the exercise of their discretion depended. ( 41 )

93.

The examination of these elements is ultimately crucial to the outcome of the present appeals, as the main basis for the judgment under appeal is that the General Court rejected the submissions made in this regard by the institutions, namely their arguments concerning the objectives of cost-effectiveness and cost savings, modernisation, additional leave entitlements for age and grade, entitlements to special rest leave on account of particularly difficult living conditions and certain economic advantages enjoyed by staff in third countries.

94.

In paragraph 102 of the judgment under appeal, the General Court rejects the objective of enhancing the cost-effectiveness of officials and other members of staff serving in third countries, while generating cost savings. It relies on recital 4 of the Working Time Directive, according to which the improvement of safety and health should not be subordinated to purely economic considerations. The General Court also asserts that considerations based on the need to protect the financial interests of the Union cannot be relied on to justify an adverse effect on the right to paid annual leave guaranteed by Article 31(2) of the Charter.

95.

As far as an adverse effect on the fundamental right to leave is concerned, the specification of the duration of leave cannot, as such, be treated as being equivalent to restrictions on payment for leave in particular. The latter represent a limitation of the fundamental right to paid leave, whereas, as I have already explained, ( 42 ) the former is a necessary concrete expression of the fundamental right. In the necessary weighing, consideration may be given to regulatory objectives which possibly might not justify a limitation.

96.

Whilst financial considerations cannot therefore be invoked against entitlement to payment during leave, which is guaranteed as a fundamental right, ( 43 ) it must be possible, in giving concrete expression to the length of leave entitlements, in particular, to take into consideration the burden on employers. The employment relationship, of which leave entitlements are part, is based on a balance of costs and benefits on both sides. For employers, leave entitlements form part of the costs and are therefore a financial aspect that cannot be ignored.

97.

Greater weight is attached to the effective protection of the safety and health of workers, which should not be subordinated to purely economic considerations. ( 44 ) It can hardly be claimed, however, that any reduction of leave entitlements would inevitably have an adverse effect on the protection of safety and health, especially where the reduction applies to leave entitlements which are more than double the minimum period of leave under Article 7 of the Working Time Directive and well above the leave entitlements for other EU members of staff.

98.

The complete rejection of the objective of cost-effectiveness and cost savings in paragraph 102 of the judgment under appeal is therefore vitiated by an error in law.

99.

The second objective of the new regime is to modernise working conditions for staff employed in third countries.

100.

In this regard, in paragraph 106 of the judgment under appeal the General Court rejects the idea that the expansion of air transport and the greater possibility of using internet-based communications justify a reduction in leave. As far as air transport is concerned, this can affect at most the travelling time granted. Furthermore, better communication possibilities have no bearing on leave entitlements.

101.

The General Court fails to recognise, however, that, for the persons concerned, leave serves to maintain ties with home to an even greater extent than for other members of EU staff. Herein lies a crucial difference with the general case-law on leave, which assumes that workers are as a rule working in their home country and can use their leave solely for rest and leisure activities. It is important for maintaining ties with home that frequent, affordable flight connections are available. These make it possible to return home more often. Furthermore, they may, irrespective of the travel days granted, reduce the actual travelling time, so that more time is left for the leave itself.

102.

The same idea ultimately underlies the argument relating to internet-based communications. Whilst there was once a reliance on expensive and possibly poor-quality telephone connections and postal communications, ties with home can now be maintained, in much better conditions, using internet-based communications such as videotelephony. These easier communications cannot completely replace personal contact, but they can lessen the need for personal contact to some degree.

103.

The complete rejection of these ideas is therefore unconvincing.

104.

Furthermore, in paragraph 107 of the judgment under appeal, the General Court rejects the argument that the new regime is intended to meet the needs of small EU representations, the proper functioning of which is jeopardised in the case of excessive leave absences. It is not evident that leave entitlements should be reduced for all representations for that reason, nor has it been shown that there are no alternatives.

105.

The proper functioning of the offices concerned must in fact be taken into account in the weighing exercise in respect of the length of leave entitlements. In addition, the fact that smaller representations are particularly affected by leave absences cannot be disregarded in that exercise.

106.

Paragraphs 106 and 107 of the judgment under appeal are therefore also vitiated by errors in law.

107.

In paragraph 109 of the judgment under appeal, the General Court found that the legislature does not appear to have actually taken account of the fact that, under Article 57 of the Staff Regulations, the leave entitlement of officials and other members of staff posted within the European Union is increased from 24 to up to 30 working days depending on their age and grade.

108.

The General Court appears to take the view that members of staff posted in third countries are not eligible for these additional leave entitlements.

109.

It is true in this regard that Annex X to the Staff Regulations does not expressly refer to Article 57. However, it is clear from the implementing provisions for Article 57 submitted by the Commission that the persons concerned benefited from those additional days of leave upon the expiry of the transitional regime in 2016. ( 45 )

110.

By making the finding in paragraph 109 of the judgment under appeal, the General Court thus distorted the submissions made by the Commission. Rather, it should also have taken those leave entitlements into consideration in the weighing exercise.

111.

The General Court does appear to take into consideration the fact that the reduction of leave entitlement could, in principle, be compensated by the possibility of being granted special rest leave of up to 15 days on account of particularly difficult living conditions at the place of employment pursuant to the first paragraph of Article 8 and Article 9(2) of Annex X to the Staff Regulations. In paragraph 110 of the judgment under appeal, the General Court nevertheless found that it does not appear that the legislature examined whether special rest leave actually ensured that health and safety was sufficiently protected. The General Court seems to assume that rest leave is granted only by way of exception by special reasoned decision.

112.

However, such an assumption distorts the information provided by the Commission concerning the arrangements for the application of those rules. It is determined for each location, depending on local conditions, how much special rest leave is to be granted. ( 46 )

113.

Under the rules, 15 days of special rest leave were to be granted in 2013 for Afghanistan, for example, 12 days for Haiti and 6 days for Côte d’Ivoire. ( 47 ) At the same time, at least two travel days are granted per trip of rest leave ( 48 ) and it is permitted to split special rest leave into between two and five periods, depending on its length. Brussels is considered the place of destination for the abovementioned locations. For certain locations in South East Asia, on the other hand, Phuket in Thailand is deemed to be the place of destination. The places of destination seem to be important principally for reimbursement of travel costs, but staff are not required to spend the special rest leave there. ( 49 )

114.

As for the idea highlighted in paragraph 93 of the judgment under appeal that special rest leave should be combined with professional training courses, this does not diminish the nature of such leave as rest as, according to the Council, professional training should be undertaken beforehand or afterwards.

115.

It is thus clear that, contrary to the view taken by the applicants, special rest leave can certainly help to fulfil the functions of annual leave. It should therefore have been taken into consideration by the General Court in the assessment of the new regime and in particular in the weighing exercise.

116.

Contrary to the view taken by the Commission, the Council and the Parliament, in paragraphs 94 and 95 of the judgment under appeal the General Court rightly rejected the consideration of various economic privileges of the persons concerned. Although they relate to living and working conditions, economic advantages cannot compensate for the loss of leave. ( 50 ) Although payment for leave is guaranteed as a fundamental right, a worker must normally be entitled to actual rest, with a view to ensuring effective protection of his or her safety and health. ( 51 ) Economic compensation is important only where, because of the termination of the employment relationship, it is in fact no longer possible to take paid annual leave. ( 52 )

117.

It must therefore be concluded that in reviewing the application of the principle of proportionality the General Court disregarded significant elements. These errors in law concern the basis of the General Court’s decision regarding the objection of illegality in respect of Article 6 of Annex X to the Staff Regulations and regarding the decision at issue.

118.

The judgment under appeal must therefore be set aside.

119.

In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, the Court of Justice may, where the decision of the General Court has been set aside, either itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the General Court.

120.

As regards the plea in law examined by the General Court, the state of the proceedings does permit final judgment to be given.

121.

In this regard, the abovementioned elements which the General Court failed to take into consideration, and in doing so erred in law, constitute important factors of justification which the legislature set out, at least to some extent, as the basis for the new regime. In the court proceedings, the participating institutions adequately explained the basis for the act within the meaning of the abovementioned case-law. ( 53 )

122.

The objectives of cost-effectiveness, cost savings and modernisation are legitimate. The new regime can contribute to achieving those objectives. No other less onerous means is evident.

123.

As regards the weighing of advantages and disadvantages, the weight of the disadvantages for the members of staff concerned is reduced by the elements which have already been discussed. ( 54 )

124.

Particular note should be taken of special rest leave under Article 8 of Annex X to the Staff Regulations, which makes it possible, inter alia, to meet a greater need for leave on account of particularly difficult living conditions. It should also be borne in mind that the remaining leave entitlements are still well above the minimum leave under Article 7 of the Working Time Directive and, at least partly because of special rest leave and additional travel days, are also higher than the leave entitlements of other EU staff, most of whom also do not serve in their countries of origin.

125.

The progressive introduction of the new regime over a period of three years further mitigates its effects.

126.

The objective of the improvement of living and working conditions does not call into question the legality of the new regime. Admittedly, the General Court rightly states that a reduction of leave entitlements cannot be regarded as an improvement of the living and working conditions of the persons concerned.

127.

As the General Court itself held in paragraph 90 of the judgment under appeal, however, that objective cannot be understood as precluding any diminution of workers’ rights. Rather, the objective of improving living and working conditions must be broadly understood as meaning that the realisation of workers’ rights ultimately also depends on the overall context of the labour market.

128.

In addition, in the present case the favourable living and working conditions of the persons concerned would be at the expense of the living and working conditions of European taxpayers. Moreover, the latter are, on average, entitled to much less leave.

129.

Accordingly, when it puts into effect the objective of the improvement of the living and working conditions of workers, the legislature must also be allowed a broad discretion, which the EU judicature should review, in substance, only in respect of manifest errors of assessment. ( 55 )

130.

In the light of these considerations, the legislature cannot be found to have made a manifest error of assessment in weighing the burdens and advantages of the new regime.

131.

This plea in law must therefore be rejected.

132.

This conclusion would be reached a fortiori if the subject matter of the objection of illegality were restricted to the first stage of the new regime, ( 56 ) that is to say, to the first paragraph, first indent, of Article 6 of Annex X to the Staff Regulations as, under that provision, the persons concerned are entitled to considerably more days of leave for 2014 than in the subsequent years.

133.

As the Commission rightly explains, however, in the present case ( 57 ) the General Court has not yet taken a view on the remaining pleas in law, that is, on whether the new regime respects the general principle of equal treatment, the principle of the protection of legitimate expectations and the right to respect for private and family life. Therefore, contrary to the form of order sought by the Council, which is not further substantiated, moreover, the state of the proceedings does not permit the Court of Justice to give final judgment on these points but, in accordance with the form of order sought by the Commission, the case should be referred back to the General Court for a decision on those pleas in law.

134.

Under Article 184(2) of the Rules of Procedure, the Court is to make a decision as to the costs where the appeal is well founded and the Court itself gives final judgment in the case. Since that is not the case here, the decision as to the costs is reserved.

135.

I therefore propose that the Court should: