C‑579/12 RX62012CD0579EU:C:2012:78500011122CJ

(Review)

In Case C‑579/12 RX,

PROPOSAL TO REVIEW made by the First Advocate General, under Article 62 of the Statute of the Court of Justice of the European Union, on 23 November 2012,

THE COURT (Reviewing Chamber),

composed of L. Bay Larsen, President of the Chamber, J. Malenovský, U. Lõhmus, M. Safjan and A. Prechal (Rapporteur), Judges,

makes the following

1The proposal to review made by the First Advocate General concerns the judgment of the General Court of the European Union (Appeal Chamber) of 8 November 2012 in Case T‑268/11 P Commission v Strack [2012] ECR, by which the General Court upheld the appeal brought by the European Commission against the judgment of the European Union Civil Service Tribunal (Second Chamber) of 15 March 2011 in Case F-120/07 Strack v Commission [2011] ECR-SC I-A-1-0000 and II-A-1-0000, in so far as it annulled the Commission’s decision of 15 March 2007 limiting to 12 the number of days of unused annual leave for 2004 which Mr Strack was allowed to carry over to the following year.

2Under Article 256(2) TFEU, decisions given by the General Court on appeal against decisions of the Civil Service Tribunal may exceptionally be subject to review by the Court of Justice under the conditions and within the limits laid down by the Statute of the Court of Justice of the European Union, where there is a serious risk of the unity or consistency of European Union law being affected.

3Pursuant to Article 62 of the Statute of the Court, where the First Advocate General considers that there is a serious risk of the unity or consistency of European Union law being affected, he may propose that the Court review the decision of the General Court.

4In that regard, it is clear from Article 193(4) of the Rules of Procedure of the Court that the Reviewing Chamber, where it has before it such a proposal to review, is to decide whether the decision of the General Court is to be reviewed and that, when that is the case, the decision to review the decision of the General Court is to indicate the questions which are to be reviewed.

5In the present case, the Reviewing Chamber considers it necessary to review the decision in Commission v Strack.

6The questions which are to be reviewed are set out in point 2 of the operative part of the present decision.

On those grounds, the Court (Reviewing Chamber) hereby decides:

1.It is necessary to review the judgment of the General Court (Appeal Chamber) of 8 November 2012 in Case T‑268/11 P Commission v Strack.

2.The review shall concern the questions whether – having regard to the case-law of the Court of Justice relating to the entitlement to paid annual leave as a principle of European Union social law, which is also expressly affirmed in Article 31(2) of the Charter of Fundamental Rights of the European Union and is covered in particular by Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (OJ 2003 L 299, p. 9) – the judgment of the General Court of the European Union of 8 November 2012 in Case T‑268/11 P Commission v Strack affects the unity or consistency of European Union law inasmuch as the General Court, as an appeal court:

—interpreted Article 1e(2) of the Staff Regulations of Officials of the European Union to the effect that it does not include the requirements relating to the organisation of working time contained in Directive 2003/88, in particular, paid annual leave, and

—consequently, interpreted Article 4 of Annex V to those Regulations as implying that the right to carry over annual leave exceeding the limit laid down in that provision may be granted only where the official has been unable to take leave for reasons connected with his activity as an official and the duties he has thus been required to perform.

3.The persons referred to in Article 23 of the Statute of the Court of Justice of the European Union and the parties to the proceedings before the General Court of the European Union are invited to lodge their written observations on those questions at the Court of Justice of the European Union within one month of the service of the present decision.

[Signatures]