(Civil service – Officials – Annual leave – Staff representation activities – Secondment on half time for union representation purposes – Activities in connection with representation as provided for in the Staff Regulations – Unauthorised absence – Deduction from annual leave entitlement – Article 60 of the Staff Regulations)

Application: brought under Articles 236 EC and 152 EA, in which Mr Lebedef seeks annulment of the decisions of 29 May, 20 June, 28 June and 6 July 2007 and also of the two decisions of 26 July 2007 and the decision of 2 August 2007, all of which concern in total a deduction of 32 days from his 2007 leave entitlement.

Held: The action is dismissed. The applicant is ordered to pay all the costs.

Summary

1. Officials – Representation – Staff Committee – Participation of officials or other servants not on secondment

(Staff Regulations, Art. 60)

(Staff Regulations, Art. 60)

4. Officials – Absence – Competence to monitor

1.It is neither possible nor desirable that staff representation should be provided solely by officials or other servants on secondment, whether for 50% or 100% of their working time. There is a positive interest in persons not on secondment assuming a part of the staff representation duties. However, the system which specifically provides for the grant of secondment to certain staff representatives implies that, in the case of officials or servants not on secondment, participation in staff representation activities should be occasional and, calculated on a six‑monthly or quarterly basis, cover a relatively limited percentage of working time.

While the precise delimitation of the ‘occasional’ nature of participation in staff representation and the precise delimitation of the percentage of time devoted to staff representation are by nature impossible and can be undertaken only on a case-by-case basis, to accept that an official or other servant not on secondment should devote virtually all, or indeed all, his working time to staff representation, and thus devote little, or indeed no, working time to the service to which he is assigned, would have the effect of distorting the system put in place by the various agreements concluded between the Commission and the trade unions and staff associations and, depending on the circumstances of the case, might be liable to constitute an abuse of right, which the Community judicature may be induced to penalise.

(see paras 49-50)

See:

T-222/95 Angelini v Commission [1997] ECR-SC I‑A‑491 and II‑1277, paras 35 and 36; T-57/96 Costantini v Commission [1997] ECR-SC I‑A‑495 and II‑1293, paras 28 and 29; T-95/98 DEP Gogos v Commission [2001] ECR-SC I‑A‑123 and II‑571, para. 24

2.Where an official has not sought prior permission for his absence or, at the very least, provided information in advance that he would be absent, an ex post facto confirmation validating his absence can apply only in the event of sickness or accident, under Article 60 of the Staff Regulations; in any event, even where such ex post facto confirmation is given, the competent administration must be able to retain a certain right of control and to assess the merits of an ex post facto regularisation of the absence deemed irregular.

(see para. 55)

3.While in certain circumstances practical difficulties or constraints imposed by confidentiality may prevent staff representatives from complying with the obligation to obtain prior permission from their immediate superior (or, at the very least, the obligation to inform their immediate superior in advance), as regards, in particular, the question of confidentiality, and apart from the fact that much information relating to staff representation activities is not confidential, notably the place and time of official meetings, and the details of those participating in them, and that the obligation to maintain confidentiality thus relates to only a part of those activities, it is always possible for a staff representative, even where such confidential data are present, to provide his immediate superior with general, non-confidential information, such as the approximate duration of a meeting.

Furthermore, a general and vague awareness of the official’s staff representation activities by the service to which he is assigned cannot count as prior information or, a fortiori, prior permission from the official’s immediate superior.

4.As regards an official belonging to two hierarchical structures, the first being that of the staff representation concerning his activities as a union representative and the second being that of the service to which he is assigned, while the staff representation is competent to monitor his absences in the context of his secondment for union purposes, the same does not apply with respect to his absences in relation to the time which he is required to devote to the service to which he is assigned, for which only that service is competent.

(see para. 59)

5.As regards the Staff Committee, the sixth paragraph of Article 1 of Annex II to the Staff Regulations provides: The duties undertaken by members of the Staff Committee and by officials appointed by the Committee to organs set up under the Staff Regulations or by the institution shall be deemed to be part of their normal service in their institution. The fact of performing such duties shall in no way be prejudicial to the person concerned.

6.The Framework Agreement on relations between the Commission of the European Communities and the trade unions and staff associations, which entered into force on 27 January 2006, for a period of 18 months, states in Article 1(2): Membership of a trade union or staff association, participation in trade union activities or the holding of office in a trade union shall in no way adversely affect the position or career of an official.

7.Staff representation within the Commission has been the subject of a number of agreements between the institution and the trade unions and staff associations, also affecting the Staff Committee and concerning in particular the resources made available for staff representation.

8.In the ‘Agreement between [the] Vice-President [of the Commission] and the trade unions and staff associations’ of 4 April 2001, it is stated that the trade unions and staff associations undertake to allocate resources between the trade unions and staff associations, but also at the same time within the Central Staff Committee and the Local Staff Committees, on the basis of the representativeness of the trade unions and staff associations, taking local constraints into account. It was also envisaged that the allocation of resources would be regulated by a protocol between the trade unions and staff associations, co‑signed by the Directorate-General (DG) for Personnel and Administration. Last, it was agreed that the Commission would make available to the trade unions and staff associations 31.5 posts to be filled by secondment, including 19.5 secondments to the Staff Committee, all these secondments being distributed between the trade unions and staff associations on the basis of their representativeness.

9.The applicant seeks annulment of the decisions of 29 May, 20 June, 28 June and 6 July 2007 and also of the two decisions of 26 July 2007 and the decision of 2 August 2007, all of which concern in total a deduction of 32 days from his 2007 leave entitlement.

JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (First Chamber)

7 July 2009 (*)

(Civil service – Officials – Annual leave – Staff representation activities – Secondment on half time for union representation purposes – Activities in connection with representation as provided for in the Staff Regulations – Unauthorised absence – Deduction of annual leave entitlement – Article 60 of the Staff Regulations)

In Case F‑39/08,

ACTION under Articles 236 EC and 152 EA,

Giorgio Lebedef, an official of the Commission of the European Communities, residing in Senningerberg (Luxembourg), represented by F. Frabetti, lawyer,

applicant,

Commission of the European Communities, represented by G. Berscheid and K. Herrmann, acting as Agents,

defendant,

THE TRIBUNAL (First Chamber),

composed of S. Gervasoni, President, H. Kreppel and H. Tagaras (Rapporteur), Judges,

Registrar: R. Schiano, Administrator,

having regard to the written procedure and further to the hearing on 17 February 2009,

gives the following

1. This request for a preliminary ruling concerns the interpretation of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1), as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 (OJ 2014 L 124, p. 1) (‘Directive 2011/92’).

Legal context

European Union law

Directive 2011/92

Recitals 7 to 9 of Directive 2011/92 state:

‘(7) Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out. …

(8) Projects belonging to certain types have significant effects on the environment and those projects should, as a rule, be subject to a systematic assessment.

(9) Projects of other types may not have significant effects on the environment in every case and those projects should be assessed where the Member States consider that they are likely to have significant effects on the environment.’

Article 2(1) of that directive provides:

‘Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. Those projects are defined in Article 4.’

Under Article 3(1) of that directive:

‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on the following factors:

…

(b) biodiversity, with particular attention to species and habitats protected under [Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), as amended by Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193) (“Directive 92/43”)] and Directive 2009/147/EC [of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7)];

…’

Article 4 of Directive 2011/92 provides:

‘1. Subject to Article 2(4), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.

(a) a case-by-case examination;

(b) thresholds or criteria set by the Member State.

Member States may decide to apply both procedures referred to in points (a) and (b).

Where a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account. Member States may set thresholds or criteria to determine when projects need not undergo either the determination under paragraphs 4 and 5 or an environmental impact assessment, and/or thresholds or criteria to determine when projects shall in any case be made subject to an environmental impact assessment without undergoing a determination set out under paragraphs 4 and 5.

Where Member States decide to require a determination for projects listed in Annex II, the developer shall provide information on the characteristics of the project and its likely significant effects on the environment. The detailed list of information to be provided is specified in Annex IIA. The developer shall take into account, where relevant, the available results of other relevant assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The developer may also provide a description of any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

The competent authority shall make its determination, on the basis of the information provided by the developer in accordance with paragraph 4 taking into account, where relevant, the results of preliminary verifications or assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The determination shall made available to the public and:

(a) where it is decided that an environmental impact assessment is required, state the main reasons for requiring such assessment with reference to the relevant criteria listed in Annex III; or

(b) where it is decided that an environmental impact assessment is not required, state the main reasons for not requiring such assessment with reference to the relevant criteria listed in Annex III, and, where proposed by the developer, state any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

Member States shall ensure that the competent authority makes its determination as soon as possible and within a period of time not exceeding 90 days from the date on which the developer has submitted all the information required pursuant to paragraph 4. In exceptional cases, for instance relating to the nature, complexity, location or size of the project, the competent authority may extend that deadline to make its determination; in that event, the competent authority shall inform the developer in writing of the reasons justifying the extension and of the date when its determination is expected.’

Annex II.A of that directive contains the list of ‘information to be provided by the developer on the projects listed in Annex II’. That list reads as follows:

‘1. A description of the project, including in particular:

(a) a description of the physical characteristics of the whole project and, where relevant, of demolition works;

(b) a description of the location of the project, with particular regard to the environmental sensitivity of geographical areas likely to be affected.

(a) the expected residues and emissions and the production of waste, where relevant;

(b) the use of natural resources, in particular soil, land, water and biodiversity.

4. The criteria of Annex III shall be taken into account, where relevant, when compiling the information in accordance with points 1 to 3.’

Annex III to that directive sets out the ‘criteria to determine whether the projects listed in Annex II should be subject to an environmental impact assessment’.

Directive 2014/52

Recitals 11 and 29 of Directive 2014/52 state:

‘(11) The measures taken to avoid, prevent, reduce and, if possible, offset significant adverse effects on the environment, in particular on species and habitats protected under [Directive 92/43] and Directive 2009/147 …, should contribute to avoiding any deterioration in the quality of the environment and any net loss of biodiversity, in accordance with the [European] Union’s commitments in the context of the [United Nations Convention on Biological Diversity, signed in Rio de Janeiro on 5 June 1992,] and the objectives and actions of the Union Biodiversity Strategy up to 2020 laid down in the [Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions] of 3 May 2011 entitled ‘Our life insurance, our natural capital: an EU biodiversity strategy to 2020’ [(COM(2011) 244 final)]

…

(29) When determining whether significant effects on the environment are likely to be caused by a project, the competent authorities should identify the most relevant criteria to be considered and should take into account information that could be available following other assessments required by Union legislation in order to apply the screening procedure effectively and transparently. In this regard, it is appropriate to specify the content of the screening determination, in particular where no environmental impact assessment is required. Moreover, taking into account unsolicited comments that might have been received from other sources, such as members of the public or public authorities, even though no formal consultation is required at the screening stage, constitutes good administrative practice.’

Directive 92/43

Article 6(3) of Directive 92/43 provides:

‘Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.’

Article 12(1) of that directive provides:

‘Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting:

(a) all forms of deliberate capture or killing of specimens of these species in the wild;

(b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;

(c) deliberate destruction or taking of eggs from the wild;

(d) deterioration or destruction of breeding sites or resting places.’

Point (a) of Annex IV to that directive mentions ‘all species’ of bats belonging to the suborder of ‘microchiroptera’.

Irish law

As regards the present case, the ‘[p]rotocol agreement between the trade unions and staff associations and [the Personnel and Administration DG] concerning the allocation of resources for staff representation for 2007’ provided for the allocation of 20 posts to be filled by secondment – to which a supplementary allocation was added – to the Staff Committee, that is to say, the Central Staff Committee and the Local Staff Committees. Concerning, specifically, the allocation of those 20 secondments, 10 secondments were given to the Confederal Alliance of Free Trade Unions.

11In practice, there are a number of arrangements under which one and the same official or other member of the staff may be seconded to a trade union or staff association (‘union representation’) and/or to the Staff Committee (‘representation as provided for in the Staff Regulations’), in particular as follows:

–100% representation as provided for in the Staff Regulations, either with the Central Staff Committee or with a Local Staff Committee, or 100% union representation;

–50% representation as provided for in the Staff Regulations and 50% union representation;

–50% representation as provided for in the Staff Regulations or union representation, the person concerned being assigned to a service of the Commission for the remaining 50% of his working time.

12The staff representatives who are seconded for union representation and/or representation as provided for in the Staff Regulations are chosen by the trade unions and staff associations, but the secondment decisions are adopted by the Commission.

Facts

13The applicant, an official of the Commission at Eurostat, was, by decision of 12 March 2004 of Mr Reichenbach, then Director-General of the Personnel and Administration DG, granted 100% secondment for union representation purposes from 1 April 2004 to 31 December 2004, when he was to be reassigned to his service of origin, Eurostat. When that secondment decision was adopted, the applicant held the post of Political Secretary of the Confederal Alliance of Free Trade Unions.

14In October 2004, the applicant was elected to the post of Vice-President of the Local Staff Committee in Luxembourg (‘the LSC’).

15By decision of 23 September 2004 of Mr Chêne, Mr Reichenbach’s successor in the Personnel and Administration DG, which was replaced by a further decision adopted by Mr Chêne on 10 February 2005, the applicant was reassigned, with effect from 1 January 2005, at the rate of 50% to Eurostat. He therefore retained the benefit of the remaining 50% of his working time on secondment as a union representative.

16None the less, in reality, throughout 2005 and 2006, the applicant was engaged exclusively in staff representation as provided for in the Staff Regulations and union representation (see paragraphs 14 and 15, respectively, of the present judgment), devoting 100% of his working time to those activities (‘staff representation activities’), with the consequence that he devoted no working time to the service to which he was assigned. It is common ground that that situation did not affect his leave entitlement.

17By a memorandum to the applicant dated 27 September 2006, the Head of Unit E.5 ‘International statistical cooperation’ of Directorate E ‘Agricultural and environmental statistics, statistical cooperation’ (‘the applicant’s Head of Unit’ or ‘his Head of Unit’) requested the applicant, inter alia, to attend Unit E.5 in future for 50% of his working time, to carry out the duties associated with his post and to achieve the objectives as set and discussed during 2005, and also to submit a report at the end of each month on ‘progress made’; the applicant’s Head of Unit informed the applicant that ‘this [was] without prejudice to any consequences of non-attendance at [his] place of work and [of] the failure to carry out any work during the period since the date of [his] assignment to Unit E.5’.

18In a letter to his Head of Unit dated 5 October 2006, the applicant, referring to his ‘half-secondment’ and to the burden of his responsibilities as Vice‑President of the LSC, expressed his surprise that he was at fault, even though, during a period when he was not on secondment and carried out fewer staff representation activities, the decisions not to promote him on the ground that he had done no work for Eurostat had been annulled by the Court of First Instance (see Case T‑175/02 Lebedef v Commission [2004] ECR-SC I‑A‑73 and II‑313 and Case T‑4/03 Lebedef v Commission [2004] ECR-SC I‑A‑79 and II‑337); the applicant further stated that ‘this is without prejudice to the consequences of the interference with my union activity, of the breach of Article 24b of the Staff Regulations, of the breach of the Framework Agreement between the Commission and the trade unions and staff associations, and of the mental harassment … suffered … for years [because of] Eurostat’.

19By memorandum of 3 November 2006, the applicant, referring to Case T‑4/03 Lebedef v Commission, paragraphs 60 and 64, informed his Head of Unit, in particular, that his presence on and his work for the staff representation ‘also count[ed] for Eurostat’; he also proposed that the parties should ‘agree’ on an arrangement whereby his presence would be monitored by the staff representation, should such monitoring be necessary for practical and formal reasons.

20In a memorandum of 17 November 2006, the Director-General of Eurostat informed the applicant that the administration of his file had been entrusted to the Head of Unit A.1 ‘Personnel’ of Directorate A ‘Resources’ of Eurostat (‘the Head of the Personnel Unit of Eurostat’).

21In a letter of 16 January 2007, the applicant’s Head of Unit informed the applicant that, following consultation with the competent services of the Personnel and Administration DG, he was unable to accept the position adopted by the applicant in his letter of 5 October 2006; furthermore:

‘… complete absence of work for the unit of assignment is not possible without official secondment. Consequently, I consider that this absence is not in accordance with the Staff Regulations and is therefore irregular. I must reiterate the instruction in my memorandum of 27 September 2006 … that you adhere to the normal working regime during the time of [your] assignment to Eurostat. I ask you to notify me in advance of any absence, for whatever reason. These absences must be given prior approval by me.’

22The applicant claims that from 29 January 2007 he noted that whenever he was not present at the Commission on a working day, including on the days when he was on a mission of union representation, a half day of irregular absence was recorded on the staff administration IT system called ‘SysPer 2’.

23By letter of 5 February 2007 to the applicant’s Head of Unit, counsel for the applicant observed that the time during which the applicant did not carry out tasks assigned by Eurostat depended ‘exclusively on the amount of work he put in for staff representation as provided for in the Staff Regulations’ and reiterated the applicant’s arguments relating to a breach of his ‘union rights’ and of Article 24b of the Staff Regulations, which provides that officials have the right of association and may be members of trade unions or staff associations.

24By memoranda of 12 March and 14 May 2007 to the Head of the Personnel Unit of Eurostat, Mr Frankin, President of the LSC, confirmed, with respect to the months of January, February, March and April 2007, that the applicant had been engaged either in union representation or representation as provided for in the Staff Regulations, or in Brussels on mission for the union representation (missions dated 11 and 30 January 2007, 14 February 2007 and 2 and 22 March 2007) and pointed out that the applicant had spent certain periods on leave and sick leave; on 9 January 2007 and between 19 and 28 February 2007 the applicant had been on leave approved by Eurostat and during the period from 18 January to 26 January 2007 he had been on sick leave declared to Eurostat, but also, during the periods from 26 to 30 March 2007 and from 2 to 30 April 2007, he had been first in hospital and then on sick leave ‘approved’ by Eurostat. In the same memoranda, the President of the LSC added that, according to the Staff Regulations and the Framework Agreement, the applicant’s staff representation activities counted as activities for his service and, consequently, as presence at Eurostat.

25According to a table entitled ‘Évolution du quota’, which was apparently taken from SysPer2 (‘the SysPer2 table’), 15½ days were withdrawn from the applicant’s annual leave on 29 May 2007 and two days on 20 June 2007, three days on 28 June 2007 and three days on 6 July 2007; the days of leave thus deducted related to the four periods from 29 January 2007 to 23 March 2007, from 15 June 2007 to 20 June 2007, from 21 June 2007 to 28 June 2007 and from 29 June 2007 to 6 July 2007.

26By memorandum of 5 July 2007 to the Head of the Personnel Unit of Eurostat, the President of the LSC confirmed, with respect to the months of May and June 2007, that the applicant had been engaged, including during the days on which he was on medical half time (namely 12 days, from 2 to 25 May 2007, and then eight days from 4 to 15 June 2007) either in union representation or representation as provided for in the Staff Regulations, or in Brussels on mission for the union representation (missions dated 1, 15 and 16 May 2007 and 7, 14 and 28 June 2007) and noted that the applicant had been on leave approved by Eurostat for the period from 28 May to 1 June 2007. In that memorandum, the President of the LSC added that, according to the Staff Regulations and the Framework Agreement, the applicant’s staff representation activities counted as activities with his service and, consequently, as presence at Eurostat.

27By e-mail of 16 July 2007 to the applicant, his Head of Unit refused the applicant’s request for 34 days’ leave – between 30 July 2007 and 14 September 2007 – because his leave entitlement was only eight and a half days; according to the applicant’s Head of Unit, on each occasion when the applicant did not present himself for work or did not produce an appropriate certificate, the administration of Eurostat was obliged, as indicated in the letter of 16 January 2007, to record his absence as unauthorised.

28By memorandum of 23 July 2007, the applicant responded to the e-mail of 16 July 2007, describing his Head of Unit’s decisions as ‘repeated and continuous mental harassment’.

29By his e-mail of 26 July 2007, the applicant’s Head of Unit confirmed his refusal to grant the request for 34 days’ leave; he pointed out that the applicant’s absences had not been authorised in advance and stated that his remaining leave entitlement was now four and a half days. On the same date, and as shown by the SysPer2 table, three days, and then four days, were deducted from the applicant’s annual leave entitlement; those deductions related to the periods from 9 to 16 July 2007 and from 17 to 26 July 2007.

30By e-mail of 1 August 2007 to his Head of Unit, the applicant informed his Head of Unit, in the first place, that he was on sick leave from 1 to 24 August 2007, which, moreover, is apparent from the SysPer2 table, and, in the second place, that he had requested leave for a period of seven days, from 27 August to 4 September 2007.

31By e-mail of 2 August 2007, the applicant’s Head of Unit refused the applicant’s request for leave on the ground that his remaining leave entitlement was only one and a half days, and informed him that he would be prepared to agree to a request for a number of days equal to or less than five. On the same date, as may be seen from the SysPer2 table, one and a half days were deducted from the applicant’s leave entitlement; that deduction related to the period from 27 to 31 July 2007.

32By memorandum of 27 August 2007 to the Head of the Personnel Unit of Eurostat, the President of the LSC, first, confirmed, with respect to July 2007, that the applicant had been engaged either in union representation or representation as provided for in the Staff Regulations, or in Brussels on mission for the union representation (missions dated 12, 18 and 26 July 2007) and, second, noted, with respect to August 2007, that the applicant had been on sick leave for the entire month, with the exception, according to that memorandum, of 2 August 2007, when the applicant had been in Brussels on mission for the union representation; as on the previous occasions, referred to at paragraphs 24 and 26 of the present judgment, the President of the LSC added that, according to the Staff Regulations and the Framework Agreement, the applicant’s staff representation activities counted as activities for his service and, consequently, as presence at Eurostat.

33On 29 August 2007, the applicant lodged a complaint against the decisions of 29 May, 20 June, 28 June and 6 July 2007 and also against the two decisions of 26 July 2007 and the decision of 2 August 2007, concerning the deduction of 32 days from his leave entitlement for 2007 (‘the contested decisions’). In his complaint, the applicant relied, first, on breach of Articles 57, 59 and 60 of the Staff Regulations, the sixth paragraph of Article 1 of Annex II to the Staff Regulations and Article 1(2) of the Framework Agreement, and interference with freedom to belong to a trade union and, second, on breach of the principle of protection of legitimate expectations and of the rule patere legem quam ipse fecisti.

On 18 December 2007, the appointing authority expressly rejected the applicant’s complaint, on the ground that the applicant could not rely on his capacity as staff representative as justification for failing to fulfil his obligations as an official assigned for 50% of his working time to Eurostat; furthermore, and since Eurostat had scrupulously adhered to the procedures and since the conversion of the irregular absences into days of leave was merely the strict application of, in particular, Articles 59 and 60 of the Staff Regulations, no irregularity could be found in the contested decisions.

Forms of order sought by the parties and procedure

35The applicant claims that the Tribunal should:

–annul the decisions of 29 May, 20 June, 28 June and 6 July 2007, and also the two decisions of 26 July 2007 and the decision of 2 August 2007, concerning the deduction of 32 days from his leave entitlement for 2007;

–make an order as to costs and expenses and order the Commission to pay them.

36The Commission contends that the Tribunal should:

–dismiss the action;

–order the applicant to pay the costs.

37Pursuant to Article 56 of the Rules of Procedure, the Tribunal prescribed measures of organisation of procedure, which were notified to the parties by letters of 8 January 2009 and 3 February 2009; the parties complied with those measures.

38In his responses to the measures of organisation of procedure, the applicant submitted, without being contradicted on this point by the Commission at the hearing, that, with respect to the period from 1 August to 6 September 2007, he had been on sick leave from 1 to 24 August 2007 (see also paragraph 32 of the present judgment), and then from 27 August to 6 September 2007; furthermore, for the period from 10 September to 21 December 2007, the applicant stated, still without being contradicted by the Commission, that he had been on medical half time and had devoted the remainder of his working time exclusively to staff representation as provided for in the Staff Regulations and union representation and that Eurostat, which regarded him as being present at work during that period, had not withdrawn a single day from his leave entitlement.

Law

Arguments of the parties

39In support of his claim that the contested decisions should be annulled, the applicant relies on two pleas in law, the first of which alleges (i) breach of Articles 57, 59 and 60 of the Staff Regulations, the sixth paragraph of Article 1 of Annex II to the Staff Regulations, and also Article 1(2) of the Framework Agreement and (ii) interference with trade union freedom; and the second of which alleges breach of the principle of protection of legitimate expectations and of the rule patere legem quam ipse fecisti.

40As regards the first plea, the applicant, after referring to the judgments in Case T‑175/02 Lebedef v Commission and Case T‑4/03 Lebedef v Commission, maintains that his staff representation activities occupy him for more than seven and a half hours a day and that it is impossible to draw a clear distinction between the activities associated with union representation and those associated with representation as provided for in the Staff Regulations. The applicant further claims that the breaches on which he relies are even more manifest because Eurostat refused even to regularise his absences on mission for the union representation purposes and questions why the absences before January 2007 had not been considered unjustified. The applicant further observes that the Staff Regulations impose no limits on staff representation activities and contends that his is an ad hoc case and that a general approach is inappropriate.

41As regards the second plea, the applicant relies on legitimate expectations, contends that Eurostat began to deduct days from his leave entitlement without ever informing him that the administration did not intend to take into consideration the memoranda from the President of the LSC confirming his presence (the memoranda referred to at paragraphs 24, 26 and 32 of the present judgment) and submits that it is incumbent on the Commission, under the principle pacta sunt servanda, to comply with Articles 57, 59 and 60 of the Staff Regulations, the sixth paragraph of Article 1 of Annex II to the Staff Regulations and Article 1(2) of the Framework Agreement.

42With respect to the first plea, the Commission claims that nothing exempts the applicant from his obligation, in the event of absence, to obtain prior permission from his immediate superior or to inform that superior in advance. Such permission or information is lacking on every occasion in the present case. In addition, the Commission submits that the wording of the sixth paragraph of Article 1 of Annex II to the Staff Regulations implies that, in addition to the duties assumed by staff representatives, another part of the duties must of necessity be performed in the service to which the official concerned is assigned, unless he is on full-time secondment. Furthermore, the Commission observes that the judgments in Case T‑175/02 Lebedef v Commission and Case T‑4/03 Lebedef v Commission merely annul decisions refusing promotion and do not even address the question whether or not the applicant was required to perform his work in the service to which he was assigned. The Commission further contends that there is an abuse of right in the present case and that the judgment in Case F‑36/07 Lebedef v Commission [2008] ECR-SC I-A-1-0000 and II-A-1-0000 confirms that the applicant cannot in any event decide for himself on the use of his time while he is assigned to Eurostat. Last, the Commission informed the applicant of his obligations on several occasions, in particular by its letter of 16 January 2007, referring to the memorandum of 27 September 2006; the fact that the irregular absences were taken into account in the form of a deduction from the applicant’s leave entitlement is thus merely the strict application of, in particular, Articles 59 and 60 of the Staff Regulations.

43With respect to the second plea, the Commission claims that the argument alleging breach of the rule patere legem quam ipse fecisti must be rejected, since all the relevant provisions were properly applied in the present case. For the same reason, the assertion relating to the alleged breach of the principle of protection of legitimate expectations cannot be upheld, more particularly because the applicant never received any individual promise and, on the contrary, was warned of the ‘possible consequences of his irregular conduct’. Last, the Commission observes that, although the applicant relies on the Framework Agreement, his relationship with the Commission is governed by the Staff Regulations and not by contract and that, accordingly, the principle pacta sunt servanda does not apply.

44In his reply, the applicant claims that his Head of Unit and his superiors were aware of his activities. He also asserts that there is no abuse of right, but rather a conflict of ‘interests’ or, more specifically, a conflict between, on the one hand, his duties and obligations to his service and, on the other, staff representation. Last, the applicant maintains that while in Case F-36/07 Lebedef v Commission the Tribunal upheld the Commission’s criticisms of the applicant’s conduct, it ‘did not adjudicate on the so-called … absences’.

45In its rejoinder, the Commission contends, in particular, that the fact that the applicant’s Head of Unit and his superiors were aware of his staff representation activities could not count as prior information or prior permission.

Findings of the Tribunal

The plea alleging (i) breach of Articles 57, 59 and 60 of the Staff Regulations, the sixth paragraph of Article 1 of Annex II to the Staff Regulations and Article 1(2) of the Framework Agreement and (ii) interference with trade union freedom

46Staff representation is of vital importance for the proper functioning of the Community institutions and, accordingly, for the fulfilment of their tasks.

47In recognition of that importance, the Council provided, at the sixth paragraph of Article 1 of Annex II to the Staff Regulations, that the duties undertaken by members of the Staff Committee are to be deemed to be ‘part of their normal service in their institution’ and that such duties are ‘in no way [to] be prejudicial to the person concerned’. Likewise, Article 1(2) of the Framework Agreement provides, in particular, that union representation activities ‘shall in no way adversely affect the position or career of an official’.

48In addition, the experience acquired within the Community institutions with respect to staff representation has revealed the advantages of a scheme whereby certain officials or servants devote 50% or 100% of their working time to staff representation duties; the scheme is described at paragraph 11 of the present judgment.

49None the less, it is neither possible nor desirable that staff representation should be provided solely by officials or other servants on secondment, whether for 50% or 100% of their working time. There is a positive interest in persons not on secondment assuming a part of the staff representation duties. However, the system referred to in the preceding paragraph, which specifically provides for the grant of secondment to certain staff representatives, implies that, in the case of officials or servants not on secondment, participation in staff representation activities should be occasional and, calculated on a six‑monthly or quarterly basis, cover a relatively limited percentage of working time.

50It is true that the precise delimitation of the ‘occasional’ nature of participation in staff representation and the precise delimitation of the percentage of time devoted to staff representation are by nature impossible and can be undertaken only on a case-by-case basis. It must be held, however, that to accept that an official or other servant not on secondment should devote virtually all, or indeed all, his working time to staff representation, and thus devote little, or indeed no, working time to the service to which he is assigned, has the effect of distorting the system put in place by the various agreements concluded between the Commission and the trade unions and staff associations (see paragraphs 8, 9 and 10 of the present judgment) and, depending on the circumstances of the case, is liable to constitute an abuse of right, which the Community judicature may be induced to penalise (see Case T‑271/04 Citymo v Commission [2007] ECR II‑1375, paragraph 100 et seq.; more specifically, in relation to the civil service, Case T‑222/95 Angelini v Commission [1997] ECR-SC I‑A‑491 and II‑1277, paragraphs 35 and 36; Case T‑57/96 Costantini v Commission [1997] ECR-SC I‑A‑495 and II‑1293, paragraphs 28 and 29; and order of the Court of First Instance in Case T‑95/98 DEP Gogos v Commission [2001] ECR-SC I‑A‑123 and II‑571, paragraph 24).

51In any event, for the purpose of resolving the dispute before it, there is no call for the Tribunal to rule on the precise limits to be observed in the exercise of their representation activities by staff representatives who are not on secondment or are on secondment for only 50% of their working time. Nor is there any call for the Tribunal to rule on whether the applicant may have committed an abuse of right, or to examine, for the purpose of establishing the existence of such an abuse, the conduct of the institution, in particular the consistent and continuous nature of its interpretation and implementation of the relevant rules of the Staff Regulations, and also of the clarity and coherence of its attitude towards the applicant, the absence of which may have contributed to such an abuse.

52Indeed, it is to be noted, throughout 2007, the applicant devoted none of his working time to the service to which he was assigned. During the period to which the contested decisions relate, namely the period from 29 January 2007 to 23 March 2007 and that from 15 June 2007 to 31 July 2007, the applicant – as he states in his application – devoted 60% of his working time to union representation activities, for which he was seconded at the rate of 50%, and the remaining time to representation activities as provided for in the Staff Regulations. Furthermore, the applicant’s responses to the measures of organisation of procedure show that, for the remainder of 2007, which, admittedly, is not concerned by the contested decisions, he was either on sick leave, or on medical half time, and when he was on medical half time his working time was ‘devoted exclusively to union staff representation and to staff representation as provided for in the Staff Regulations’ (for the latter period, no days were deducted from his leave entitlement).

53Yet none of those absences, which were, first, deemed irregular by the administration of Eurostat, then deducted from the applicant’s leave entitlement to the extent of the working time which he ought to have provided within the service to which he was assigned, namely to the extent of 50%, and gave rise, finally, to the adoption of the contested decisions, had been the subject of prior permission by the applicant’s immediate superior at Eurostat, namely his Head of Unit, nor had the applicant, at the very least, informed his Head of Unit in advance that he would be absent.

54Thus, the applicant failed to comply with Article 60 of the Staff Regulations, under which an official is required to obtain prior permission from his immediate superior for any absence, except in case of sickness or accident. Neither did he thereby, at least, do what the Commission suggested at the hearing would be acceptable, namely inform his Head of Unit in advance, thereby providing information of the type envisaged in Article 6(1) of Commission Decision C(2005) 2665 of 15 July 2005 on improving social dialogue within that institution, which was cited in the memorandum of 4 January 2007 of the Head of Unit B.5 ‘Social dialogue, enlargement and relations with the national public administrations’ of the Personnel and Administration DG, addressed to the Head of the Personnel Unit of Eurostat and annexed to the Commission’s responses to the measures of organisation of procedure (that article states that members of the joint commissions and committees, including staff representatives, must notify their immediate superior in advance of any absence relating to their participation in the work of a commission or committee).

Furthermore, and in the light of the foregoing, the ex post facto