C-348/90
ECLI:EU:C:1991:370
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PARLIAMENT v VIRGILI-SCHETTINI
O P I N I O N O F M R ADVOCATE GENERAL LENZ delivered on 3 O c t o b e r 1991 *
Mr President, 4. The Court of First Instance accepted the Members of the Court, respondent's argument with regard to the unused leave carried over to 1988, but dismissed the remainder of her application.
A — The Facts
5. The Parliament has now brought an appeal against the judgment of the Court of 1. The case on which I am presenting my First Instance ordering it to pay compen- Opinion today is an appeal against a sation in respect of 27 days' leave. For the judgment of the Court of First Instance in a particulars of the facts, the parties' staff case which the Court is to decide arguments and the procedure, I would refer without an oral hearing. to the Report by the Judge-Rapporteur.
2. The applicant at first instance, Mrs 6. The appellant sets out three pleas in its Virgili-Schettini (to whom I shall refer as appeal: 'the respondent'), upon the termination of her employment, asked the appointing authority at the European Parliament, 'the appellant', for compensation in respect of unused leave pursuant to Article 4 of Annex V to the Staff Regulations. This was refused (1) inadmissibility of the application, by decision of 1 February 1989 on the ground that she no longer had any leave entitlement.
(2) lack of reasons for the judgment of the Court of First Instance, 3. The respondent contested that decision, since she claimed that she was still entitled to leave for two reasons, first, as a result of leave carried over from 1987 to 1988 and, secondly, on the basis of a different calcu- lation of the start and end of her maternity (3) infringement of Article 4 of Annex V to leave in 1988. the Staff Regulations.
* Original language: German.
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O P I N I O N OF MR LENZ —CASE C-348/90 P
B — Opinion 'An appeal shall seek:
1. Inadmissibility of the application — to set aside, in whole or in part, the decision of the Court of First Instance;
7. At first instance the appellant did not claim that the application should be — the same form of order, in whole or in dismissed because it was inadmissible, but part, as that sought at first instance and expressly left the question of admissibility to shall not seek a different form of order.' the Court of First Instance to decide in the due exercise of its discretion. In the alter- native, it argued that the application was inadmissible on the ground that the 10. Since a form of order was not sought at applicant's complaint submitted in the first instance claiming that the application pre-litigation procedure was not signed by was inadmissible, it cannot be 'upheld' on her personally but by her lawyer, who appeal. subsequently represented her in the proceedings before the Court.
11. This complaint must therefore be rejected as inadmissible, since it goes 8. The Court of First Instance held that it beyond the form of order sought at first was not disputed that the initiative for the instance. complaint emanated from the official, who had also determined its content. In those circumstances to demand that the official should sign the complaint prepared by her lawyer would constitute completely 12. In the alternative, I would point out excessive formalism, devoid of any legal that that complaint could not be held to be basis and contrary to the case-law of the well founded. Both parties relied on the Court of Justice. ' Court's judgment in Herpels v Commission 2 to support their arguments. The appellant claimed that the nature of the pre-litigation procedure as an exchange between the official and the appointing authority would 9. Since the appellant did not claim that the be distorted if the official were permitted to application should be dismissed as inad- be advised and represented by his lawyer at missible it could not formally have failed to this stage. obtain a form of order based on inadmis- sibility. Article 113(1) of the Rules of Procedure of the Court of Justice expressly provides that a different form of order may not be sought on appeal. Article 113(1) 13. For her part, the respondent maintained provides as follows: that servants of the European Community
1 — Judgment of 26 September 1990 in Case T-139/88 Virgili- 2 — Judgment in Case 54/77 Herpels v Commission [1978] Schettini v European Parliament, at paragraph 20. ECR 585.
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PARLIAMENT v VIRGILI-SCHETTINI
were at liberty, even during the pre-liti- regarding legal representation in the gation stage, to obtain advice and assistance pre-litigation stage cannot be regarded in from a lawyer. the light of the judgment cited as erring in law.
14. As far as the judgment in the Herpels case is concerned, it should be observed first 18. The appellant has not stated any reser- that it was concerned with the question of vations about the assessment of the facts representation by a lawyer at the complaint made by the Court of First Instance to the stage solely as regards the reimbursement by effect that, with regard to both form and the other party of costs incurred at that content, the complaint was made at the stage. initiative of the respondent. Since errors of law were not invoked by the Parliament and are not discernible in respect of this finding of fact, the Court of Justice must assume that it is correct. Finally, the lower court's 15. The appellant bases its view of the law assertion that a lawyer who represents a on a narrow literal interpretation of a party in proceedings before the Community phrase in paragraphs 45 to 49 of the Court has to produce proof of authority judgment in Herpels, where the pre-liti- only if challenged is a legally correct inter- gation stage is described there as an pretation of the Rules of Procedure. 5 'exchange between the official unassisted by a lawyer and the administration'. 3
19. The Parliament's first ground of appeal 16. The respondent based her arguments on must therefore be rejected. the context of those same paragraphs of the judgment. In the same paragraph the Court stated that an official could not be prohibited from seeking advice even at that stage. In view of the question at issue in that 2 and 3. Lack of reasons for the judgment; particular case, this finding was qualified by erroneous interpretation of Article 4 of Annex the remark that the decision to use a lawyer V to the Staff Regulations for this purpose was the official's own decision and that 'the institution concerned cannot be held liable for the conse- quences'. 4
20. In its appeal, the Parliament maintains that it is clear neither from the judgment nor from the Report by the Judge- 17. The statements contained in the Rapporteur what legal criteria the Court of judgment of the Court of First Instance First Instance used in order to calculate the balance of 27 days' unused leave. 3 — Judgment in Herpels, cited above, at paragraphs 45 to 49. 4 — Loc. cit. 5 — Cf. Article 38(3) of the Rules of Procedure.
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OPINION OF MR LENZ — CASE C-348/90 P
21. The compensation payable in respect of the internal rules adopted pursuant to the days of leave not taken upon termination of institution's power of internal organization employment is based on Article 4 of dealing with recognition of leave not taken Annex V to the Staff Regulations. Conse- owing to requirements of the service. In quently, in law, matters can turn solely on this connection it refers to the internal the application of that provision, so that memoranda which, it argues, are applicable the third ground — erroneous application and exclude any days carried over in excess of this provision — must be considered of 12 from 1987 for failure to comply with together with the complaint alleging lack of the prescribed procedure. reasons. The legal considerations relating to the interpretation and application of Article 4 of Annex V to the Staff Regulations are the precondition for the purely factual calculation which resulted in the Court of First Instance ordering the appellant to pay compensation in respect of 27 days' leave. 24. It must be granted that the Parliament may, within the framework of its power of internal organization, adopt provisions to determine technical administrative procedures for the implementation of the rights granted to officials by the Staff Regu- 22. The first paragraph of Article 4 of lations. However, those administrative Annex V to the Staff Regulations provides provisions cannot detract from the right of that the amount of leave which may be the person concerned to adduce proof of carried over from one calendar year to the requirements of the service in other appro- next may not exceed 12 days where the priate ways. That is what happened in the failure to take the leave is due to reasons present case. other than the requirements of the service. However, if there are such reasons, there is no limit to the number of days that may be carried over. The Court of First Instance held that the respondent 'gave credence to her submission that the accumulation of her leave was due to the requirements of the service, and the Parliament was unable to shake those claims'. 6 The Parliament has 25. The calculation of 27 days' leave on the not maintained that this finding was wrong date when the respondent left the service of in law; nor is this discernible in the the Parliament at the end of January 1989 is judgment. Consequently, this finding of fact the purely mathematical result of the legal must be accepted. considerations. The relevant figures are set out in the judgment of the Court of First Instance. 7 In this respect the Court of First Instance took over the Parliament's calcu- lation set out in its original decision, with a single alteration relating to the days carried over from 1987 to 1988. In order to make 23. The Parliament maintains, however, matters clear, I shall reproduce the calcu- that the Court of First Instance disregarded lation here:
6 — Judgment in Case T-139/89, at paragraph 31. 7 — At paragraph 2 of the judgment.
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PARLIAMENT v VIRGILI-SCHETTINI
Calculation Calculation It is completely immaterial for the purposes by the by the Court of the calculation whether a subtotal is European of First formed for the end of 1988 or the total Parliament Instance number of days' leave for the two years is Carried over from 12 days 44 days considered for the purposes of offsetting: 1987 Leave for 1988: — 24 Carried over — travelling time 5 from 1987: 44 — age 1 + 30 days + 30 days 42 days 74 days
16 weeks' Leaveforl988: + 3 0 —33 (unauthorized maternity leave, Leave for 1989: + 7 - 2 1 absences) plus two days 81 - 5 4 = 27 special leave for the birth of a child (11 J u l y — 4 Consequently, the contested judgment November), set off contains all the elements of fact and law against unjustified upon which it is based. The claim of lack of reasons and erroneous application of Article absences (7 4 of Annex V to the Staff Regulations must November — 21 therefore be rejected. December 1988) — 33 days - 30 days Carried over from 1988: 9 days 41 days Leave for 1989: Costs — 2 + 7 days + 7 days — travelling time 5 Less unjustified 26. Since the Parliament's appeal is unsuc- absences (3 January cessful it must be ordered to pay the costs in — 31 January accordance with the first and second para- 1989) — 21 days — 21 days graphs of Article 122 and Article 69(2) of — 5 days + 27 days the Rules of Procedure.
C — Conclusions
27. I suggest that the C o u r t should decide as follows:
(1) T h e appeal is dismissed;
(2) T h e appellant is o r d e r to pay the costs of the appeal.
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