T-66/91

JUDGMENT OF 10.7. 1992 — CASE T-66/91

cial compensation subject, beyond the limit compensation for annual leave which an offi- of 12 days unused leave, when the official cial has been unable to take owing to require- retires. ments of service, upon retirement. In partic- ular, the binding requirement of a written statement from the official's superior specify- ing the requirements of the service which jus- Accordingly, the administration is not enti- tified the refusal to grant an application for tled to limit the number of days for which leave submitted by the official in question is compensation is payable. Nor may it impose unacceptable, since it deprives him of the additional conditions, of a procedural nature right to prove, by any means, that his leave or otherwise, which are liable to undermine was accumulated for reasons relating to the the right provided by the Staff Regulations to requirements of the service.

J U D G M E N T O F T H E C O U R T O F FIRST INSTANCE (Third Chamber) 10 July 1992 *

In Case T-66/91,

Francesco Pasetti Bombardella, represented by Albert Wildgen, of the Luxem- bourg Bar, with an address for service in Luxembourg at the latter's Chambers, 6 Rue Sainte Zithe,

applicant,

PASETTI BOMBARDELLA v PARLIAMENT

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Third Chamber),

composed of: B. Vesterdorf, President of the Chamber, A. Saggio and J. Biancarel- li, Judges,

Registrar: B. Pastor, Administrator,

having regard to the written procedure and further to the hearing on 24 June 1992,

gives the following

3 The memorandum in accordance with which the abovementioned statement had been drawn up had been sent on 1 August 1989 by the Secretary-General of the Parliament, Mr Vinci, to Mr Pasetti Bombardella, in his capacity as Jurisconsult, to the Directors-General and the Director for data processing and to the Secretaries- General of the political groups of the Parliament. Paragraphs 1, 2, 3 and 5 were worded as follows:

'1. Officials and other servants must endeavour to use their leave entitlement in the year in which that entitlement arose and in any event not to carry leave forward in excess of the 12 days which automatically qualify to be carried forward.

2. Beyond the abovementioned 12 days, leave will be permitted to be carried forward only upon production of an application for leave which has been refused, accompanied by a written statement from the superior of the person concerned indicating the requirements of the service which gave rise to the refusal.

3. In any event, the total number of days carried forward must not exceed the total holiday entitlement acquired during the past year.

5. Officials and other servants (including freelance auxiliary staff) shall endeav- our to use their holiday entitlement before definitively leaving the service. When definitively leaving the service, which implies that they are not re-engaged within a period of two months, they are entitled to payment in respect of unused leave upon production of a written statement from their superior of the kind referred to in paragraph 2 and subject to the limit laid down in paragraph 3.'

5 After disclosure to him, on 14 January 1991, at his request, of the abovementioned detailed statement of his entitlement to compensation, which imposed a limit of 30 days unused leave, on 20 February 1991 the applicant sent a letter to the Secretary- General requesting payment for all the leave not taken before he left the Parlia­ ment. He claimed, essentially, that only the requirements of the service had pre­ vented him from using up his annual leave and that the administration was not entitled to nullify the rights acquired by him when he retired. By letter of 10 May 1991 to the Secretary-General, the applicant stated that his earlier letter of 20 Feb­ ruary 1991 should be regarded as a complaint within the meaning of Article 92 of the Staff Regulations of Officials of the European Community.

6 Following the judgment of the Court of First Instance in Case T-139/89 {Virgili- Schettini v Parliament [1990] ECR 11-535, summary publication), the appropriate department issued an expenditure order on 3 June 1999 including an instruction t o

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pay the applicant the gross sum of BFR 497 974 as compensation for 26.5 days' leave not taken. On 6 September 1991, the Financial Controller refused to approve that order. The reasons for his refusal were, first, that the payment order did not conform with the internal rules on the implementation of the Parliament's budget and, secondly, that it infringed the principle of sound financial management.

7 On 3 June 1991, the Director-General for personnel, budget and finance sent a communication to the staff stating that 'The Staff Regulations impose no limit on the right to carry forward unused leave or, upon leaving the service definitively, to obtain payment in respect thereof. However, beyond the twelve days which may automatically be carried forward, they allow such a carry-forward only if the leave concerned could not be taken because of the requirements of the service'. In that regard, the communication stated that 'Leave may no longer be carried forward merely on the basis of a statement as to the requirements of the service: it will be necessary to produce several unsuccessful applications for leave spread over the year, accompanied by specific reasons'.

(i) order the Parliament to pay him compensation for 26.5 days to which he was entitled as at 31 December 1989, the date of his retirement, and interest on that sum from that date;

(ii) order the Parliament to pay the costs.

The defendant contends that the Court of First Instance should:

(i) declare the action unfounded;

(ii) order the applicant to pay the costs.

Pleas in law and arguments of the parties

The applicant states that it is undisputed that he was prevented by requirements of the service from using up his annual leave before retiring. He relies on the mem- orandum from the Director of the Cabinet of the President of the Parliament of 7 November 1989, which states that, because of the performance of the tasks entrusted to him, Mr Pasetti Bombardella would not be in a position to use up his leave entitlement before the end of 1989. He observes that the Director of the Cab- inet was competent to agree to his leave being carried forward 'since the adminis- tration and the Secretary-General regard him ... both in the Parliament and in the other institutions, as the alter ego of the President. In fact, the reply is given by him and not by the President'. He also claims that the Secretary-General recog- nized, in his memorandum of 8 December 1989 to the President, following the memorandum from the Director of the Cabinet, referred to above, that Mr Pasetti Bombardella 'was unable because of overriding requirements of the service to use up his leave'. The fact that at that time the Director of the Cabinet had not been informed of the imminent retirement of the official concerned has no bearing on the requirements of the service which justified his leave being carried forward. Sim- ilarly, with regard to the allegedly belated authorization for the abovementioned carry-forward of leave, the applicant points out that the requirements of the ser- vice may be appraised by the administration at any time, as the Court of First Instance held in paragraph 26 of its judgment in Case T-139/89, cited above.

— and also certain allegations made by the internal controller.

13 The Parliament, for its part, contends that it follows clearly from Article 4 of Annex V to the Staff Regulations, which limits to twelve days the unused holiday which may be carried forward for reasons not attributable to the requirements of the service, in conjunction with Article 57 of the Staff Regulations, which lays down the number of days annual leave available, that the principle that annual leave should be used up within the year in question, subject to twelve days being carried forward, constitutes both a right and an obligation attaching to each official. According to the Parliament, it is only if an official, after submitting an application for leave in due time, is refused leave because of requirements of the service and against his will, that the Staff Regulations provide for the payment of financial com- pensation upon retirement. In that regard paragraph 2 of the memorandum of 1 August 1988 lays down the procedure to be followed with a view to obtaining per- mission to carry leave forward.

14 In the present case, the Parliament considers that that procedure was not followed. It contends, essentially, that the decision of 7 November 1989, on which the appli- cant bases his claim for financial compensation of 56.5 days unused leave, was not adopted in accordance with the prescribed conditions. In support of that argument, it puts forward four pleas in defence, referring respectively to the lack of authority of the author of the memorandum, the freedom of action enjoyed by the applicant, his duty to inform the President's Chef de Cabinet of his imminent retirement and the serious financial consequences arising from his request for leave to be carried forward and, finally, the belatedness of that request.

In that regard, the Parliament observes that, in practice, it was the President who, in 1987 and 1988, approved applications for unused leave to be carried forward. Moreover, in implementation of a memorandum from the Director-General for personnel of 6 February 1986, indicating that a monthly summary of mission expenses incurred by the applicant must be initialled, for information, by the Pres- ident, the latter affixed his signature to the monthly accounts of missions under- taken by the applicant in 1988 and 1989. It is thus apparent, in the Parliament's view, that the President's Chef de Cabinet was never involved in decisions autho- rizing either the carrying forward of leave or mission orders before his memoran- dum of 7 November 1989. Moreover, the practice followed was for the President's Chef de Cabinet, when notifying a decision adopted by the latter, to indicate in his own handwriting at the foot of the page 'Agreed by the President' and to sign. In those circumstances, the Parliament considers that the applicant, who could not have been unaware of the Chef de Cabinet's lack of authority in that regard, can- not rely on the memorandum of 7 November 1989, mentioned above.

1 6 Secondly, the Parliament contends that the applicant enjoyed considerable inde- pendence in organizing his activities, enabling him to delegate his powers, with a view to using up his leave, to one or more members of the department working under his authority who were qualified to have such powers delegated to them.

i9 Moreover, it should be noted that, in response to a question put by the Court at the hearing concerning the reason for which the Parliament, whilst contesting before the Court the applicant's entitlement to compensation for 56.5 days' leave, on the ground that the procedural conditions laid down in paragraph 2 of the mem- orandum of 1 August 1989 had not been fulfilled by the applicant, nevertheless granted him partial financial compensation for 30 days, the Parliament stated that the subject-matter of the present dispute is the 26.5 days for which compensation has not yet been paid but that, depending on the judgment to be given in these proceedings, it may be prompted to consider whether it would be appropriate to recover, as unduly paid, the financial compensation already paid to the applicant.

Legal assessment

2o The Court finds, first, that the applicant's claim that certain allegations made by the defendant should be deleted from the record on the ground that they are 'inju- rious to his reputation' is unfounded. That request by the applicant refers to the Parliament's reliance, in its pleas in law, on certain arguments based on legal prin- ciples, such as those of loyalty and trust in administrative relationships or nemo auditur which the applicant has been able to counter by legal and factual argu- ments, both in his written observations and at the hearing. Furthermore, the appli- cant does not indicate precisely which other allegations are, in his opinion, injuri- ous or defamatory to him. In those circumstances, the above claim cannot be upheld.

24 In those circumstances, the administration is not entitled to limit to 30 days the compensation for leave which it was not possible to take because of requirements of the service, a fact which the defendant, moreover, recognized at the hearing. N o r may it impose additional conditions, of a procedural nature or otherwise, which are liable to undermine the right provided by the Staff Regulations to compensation for annual leave which an official has been unable to take owing to requirements of service, upon retirement.

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25 In the present case, the Court considers that the conditions relied on before it by the Parliament, to which the memorandum of 1 August 1989 (paragraph 2) makes the carrying over of annual leave subject, undermine the rights laid down in the first and second paragraphs of Article 4 of Annex V to the Staff Regulations. In fact, the binding and exclusive requirement, as laid down in the abovementioned memorandum of 1 August 1989, of a written statement from the official's superior specifying the requirements of the service which justified the refusal to grant an application for leave submitted by an official is unacceptable since it deprives offi- cials of the right to prove, by any means, that their leave was accumulated for rea- sons attributable to the requirements of the service.

29 This Court has unlimited jurisdiction in the present case and it is therefore neces- sary tó amend the decision of 14 January 1991 to the extent to which it encroaches upon the applicant's rights, as they have just been specified, and to order the Par- liament to pay him financial compensation for the 26.5 days of unused leave, for which compensation has not yet been paid and to which he was entitled upon retirement.

30 As regards the applicant's claim for the award of default interest, the Court observes that, as regards determining whether there was a delay and whether such delay was unjustified, account must be taken of the fact that the institutions must have a reasonable period, depending on the circumstances of the particular case and the complexity of the matter, in order to draw up their decisions (see the judgments of the Court of First Instance in Case T-16/89 Herkenrath and Others v Commis- sion [1992] ECR 11-275, paragraph 38, and Joined Cases T-17/89, T-21/89 and T-25/89 Brazzelli Lualdi and Others v Commission [1992] ECR 11-293, paragraph 37).

3i In the present case, it is appropriate to order the Parliament to pay default interest at the rate of 8% per year, as from 14 March 1990, on which date the defendant institution, acting within a reasonable time, paid partial compensation for the leave which the applicant had not taken by the time he retired on 31 December 1989.

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Costs

3. Orders the European Parliament to pay the costs in their entirety.

Vesterdorf Saggio Biancarelli

Delivered in open court in Luxembourg on 10 July 1992.

H.Jung B. Vesterdorf

Registrar President

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