The background to the complaint

1. The Staff Regulations of Officials of the European Communities ('the Staff Regulations') provide for a right of officials to enjoy annual leave of not less than twenty-four working days[1].

2. In the year in which the official enters or leaves the service, he or she is entitled to two working days for each complete month of work[2]. The official may take annual leave all at once, or at various intervals throughout the year, always paying due regard to the interests of the service[3]. Where, at the time of leaving the service the official has not used up all his or her annual leave, the official is entitled to compensation[4]. In addition to annual leave, the official may apply for special leave[5] and be granted extra days for travel to his or her place of origin[6]. The institutions' temporary staff may enjoy the same rights[7]. Members of the institutions' auxiliary staff may be granted special leave[8].

3. The complainant worked in the Committee of the Regions (the 'CoR') on a number of successive contracts as: (i) an Auxiliary Agent, between 16 August and 30 November 2004, and as a Temporary Agent, between 1 December 2004 and 31 August 2005 (hereafter 'Period 1'); and (ii) again as a Temporary Agent, between 16 April 2006 and 30 September 2007 (hereafter 'Period 2'). On the latter date, the complainant left the CoR.

4. In April 2006, the CoR paid the complainant EUR 1 876,48 compensation for thirteen days of annual leave unused during Period 1.

5. On 16 September 2007, the complainant informed a Director at the CoR (the 'Director') by e-mail that he had been given medical advice to work part-time. The complainant emphasised that he delivered the original medical certificate to the CoR's Medical Service, having also informed his unit's Secretariat.

6. The following day, the Director replied, also by e-mail, that the complainant had sixteen and a half days of holidays left before leaving the CoR at the end of that month. This meant that his holidays exceeded the working time he had left before his contract expired. The Director emphasised that "in fact [the complainant was already] on vacation". He was further aware that, after assessing his tasks, the CoR found no reason to forbid him from going on holidays. The schedule of the complainant's medical treatments, or the amount of time he could still work, was, therefore, as far as the CoR was concerned, irrelevant. However, the Director had not yet received any request for holidays duly signed by the complainant. He therefore "repeat[ed his] wish" that the complainant submit that request.

7. The complainant then replied, on 18 September 2007, that it was impossible for him to go on holidays and that he could not request holidays. He had just returned from sick leave and had been given medical advice to work part-time. The complainant preferred to take holidays during a period which was more convenient for him, having, of course, regard to the needs of the CoR. The complainant experienced difficulties in planning holidays during Period 2 because of his successive short-term contracts with the CoR. In addition, the CoR refused him two requests for holidays during that period: one in August and another in November 2006. In the meantime, the complainant could not go on holidays. In September 2006, during a time when the complainant was expecting his contract to be prolonged, he was in charge of organising a meeting with a Commissioner. In October 2006, he had to integrate a recently-arrived colleague into his unit. As a result, the complainant only took two weeks of holidays in March and one week in June 2007. He now needed an intensive post-operation treatment and was therefore unable to go on holidays. He was nevertheless ready to work part-time.

8. Based on all the above, on 21 December 2007, that is, after leaving the CoR, the complainant requested compensation for a total of thirty-two days of unused annual leave during his employment with the CoR. In addition to the thirteen days compensation already granted for Period 1, the complainant asked CoR to pay him a further eight days of travelling time in 2004/2005[9]. As regards Period 2, the complainant emphasised that whilst he was entitled to a total of forty days of leave, he took only twenty-four days of leave. In addition, according to the complainant, three days of the above-mentioned annual leave taken should have been considered as special leave; between 2 and 4 July 2007 the complainant was outside Belgium for a medical consultation. In this respect, the complainant referred to a 'Staff Notice' issued by the CoR on 23 April 2007 (the 'Staff Notice'), according to which "[a] request for special leave must be submitted and may even be submitted after the event... Once the relevant documents have been received, the special leave is validated...", and sent a request for special leave, accompanied by evidence pertaining to the consultation, to the CoR's medical and administration services. The complainant then emphasised that he did not take more annual leave during Period 2 because he was the only person in his unit responsible for the CoR's cooperation activities during an exceptionally busy period. He had to organise conferences, publications, and meetings. During summer 2006, he could not go on holiday. His Head of Unit asked him to replace him while he was on holiday. Two other administrators were on long-term sick leave. Then, the complainant had to train a newly-recruited colleague. All his requests for holidays were refused. Finally, his successive short-term contracts with the CoR did not allow him to plan his holidays properly.

9. On 1 February 2008, the complainant received a salary statement from the CoR concerning his unused annual leave (the 'Salary Statement'). The Salary Statement established the complainant's unused annual leave: (i) for Period 1 at "EUR 1 876,48"; and (ii) for Period 2 at "EUR 705,07".

10. On 14 April 2008, the complainant submitted a complaint to the CoR under Article 90(2) of the Staff Regulations. In his complaint, the complainant took the view that the CoR failed to explain how it reached the amounts of the Salary Statement. It further failed to respect legitimate expectations and annulled its own decision (which was already two-years old) to grant him compensation for Period 1. Finally, it failed to pay due regard to the complainant's welfare. The complainant therefore asked the CoR to annul its Salary Statement, and compensate him for eight days of unused annual leave during Period 1, and twenty-four days during Period 2, plus interest on deferred payment.

11. On 22 July 2008, the CoR issued the decision on the above complaint (the 'Decision'). The CoR explained that it had committed an error as regards Period 1. The complainant did not owe it any money. Instead, the CoR would pay the complainant EUR 784,92, with additional interest for deferred payment. In addition, the rules applicable to CoR's temporary staff provided for the possibility of the staff being granted travelling time[10]. In light of the fact that the complainant may have experienced difficulties in planning his holidays during 2005, the CoR was ready to pay him compensation for 4 days of unused travelling time in 2005. However, as regards 2004, the CoR noted that the complainant first entered into service as an Auxiliary Agent and only became a Temporary Agent on 1 December of that year. According to the applicable rules, payment of the full amount of the travelling time took place only when the temporary agent entered into service before 1 October of the given year[11]. Consequently, no travelling time was due to the complainant for 2004. As regards Period 2, the complainant was entitled to seventeen days of unused annual leave in 2006. The CoR could not grant the complainant the three days of special leave he requested because he did not comply with the applicable rules. The Staff Notice mentioned by the complainant made clear reference to two of the CoR's decisions, which provided that the complainant ought to have submitted the documents before he attended the medical consultation[12]. In addition, the CoR's medical and administrative services never received the complainant's request or the related evidence, as explained above. As regards travelling time, the CoR was ready to grant the complainant compensation for 4 days of travelling time in 2006. In addition, it would also pay him compensation for travelling time in relation to 2007, with interest for deferred payment[13]. It emphasised, however, that the interests of the service did not in any way prevent the complainant from taking holidays during that latter year[14]. In this respect, the CoR emphasised that, in May 2007, the complainant's Head of Unit insisted that he inform him about his plans as regards his remaining holidays. Later, in September of that year, the Director informed the complainant that none of his tasks were urgent. He then repeatedly asked the complainant to submit his request for holidays. In the absence of any reaction from the complainant, the Director decided that the complainant should go on holiday as of 13 September 2007 until the end of his contract later that month. On 17 September 2007, the Director further reminded the complainant that he was on holiday. Notwithstanding the foregoing facts, the CoR was ready to compensate the complainant for the two extra days he worked on 13 and 14 September 2007. In conclusion, the CoR paid the complainant: (i) EUR 784,92 for the Period 1; plus compensation for (ii) eight days of travelling time in 2005/2006; (iii) two days of unused annual leave in 2007; and (iv) remaining travelling time in 2007.

12. On 15 August 2009, the complainant filed a complaint against the Decision to the Ombudsman (complaint 2066/2009/JF).

13. On 20 November 2009, the Ombudsman declared that there were no grounds for complaint 2066/2009/JF, due to a lack of supporting evidence.

14. On 24 May 2010, the complainant submitted the present complaint 1190/2010/JF by adding some further documents and information to his initial complaint.

The subject matter of the inquiry

15. The complainant alleged that the CoR did not adequately explain why twenty-two days of his unused annual leave could not be compensated.

16. The complainant claimed that the CoR should pay him compensation for twenty-two days of unused annual leave.

17. In his observations, the complainant submitted new allegations relating to his successive short-term contracts and the termination of his employment with the CoR[15].

18. The Ombudsman cannot deal with these new allegations. In addition to the fact that the complainant does not seem to have approached the CoR in relation to the new allegations, these allegations concern events that took place more than two years before the complainant decided to bring them to the attention of the Ombudsman[16].

The inquiry

19. On 17 September 2010, the Ombudsman forwarded the complaint to the President of the CoR for an opinion[17]. In his letter, in which he first addressed the opening inquiry into the complaint, the Ombudsman asked the President of the CoR to explain, in as a detailed a manner as possible, the CoR's calculations relating to: (i) the days of annual leave to which the complainant was entitled during his employment with the CoR; (ii) the ten days of unused annual leave which were granted and the amount of the compensation paid to the complainant for that unused annual leave; and (iii) the twenty-two days of unused annual leave which were not granted and the amount that would correspond to compensation for that unused annual leave, had it been paid.

20. On 15 December 2010, the Ombudsman received the CoR's opinion in French, and, on 18 January 2011, its translation into English, which he forwarded to the complainant for his observations.

21. On 2 March 2011, the Ombudsman received the complainant's observations.

The Ombudsman's analysis and conclusions

A. Allegation of a failure to adequately explain

Arguments presented to the Ombudsman

22. The complainant took the view that he was entitled to compensation for the twenty-two days of holiday leave in question. He had been unable to make use of them during his employment period. This was because of his successive short-term contracts and the interests of the service. In addition, the CoR failed to grant him special leave on medical grounds when he was away from Brussels on a medical consultation in July 2007. With his complaint, the complainant enclosed fax reports which, in his view, attested that he had duly submitted all the necessary documents to the CoR on 21 December 2007.

23. In its opinion on the complaint, the CoR first referred to the calculations and explanations provided for in the Decision. It again confirmed that, in accordance with the applicable rules, since the complainant entered into service as a Temporary Agent only after October 2004, he had no right to travelling time that year. It further pointed out the periods in which it considered that the complainant was on holidays, namely between 11 and 15 April 2007. It emphasised that all sums of money mentioned in the Decision had already been paid to the complainant, with interest on deferred payment.

24. Second, the CoR added to the Decision that the fax reports the complainant enclosed with his complaint provided no evidence whatsoever that he duly sent the necessary documents to the CoR. In any case, the complainant should have submitted those documents two weeks before departing on special leave. The CoR had no trace of these documents.

25. Third, the CoR noted that the complainant disagreed with the contention that the interests of the service did not require him to work between 17 and 28 September 2007. It emphasised that any decision concerning any such requirement belonged to his superiors[18].

26. In his observations on the CoR's above-mentioned opinion, the complainant took the view that the CoR made a number of mistakes:

27. First, the complainant entered into service with the CoR on 16 August 2004. Consequently, he entered into service before 1 October 2004 and therefore, he should have had the same right to travelling time in 2004 as he had in 2005;

28. Second, the complainant noted that the CoR considered that he was on annual leave from 11 to 15 April 2007. This was a mistake. The complainant did not take any leave in April 2007. The complainant enclosed a document with his observations that showed that he took no holidays in April 2007. In addition, the 14 and 15 April 2007 were a Saturday and a Sunday respectively. The CoR should therefore pay him the corresponding five days of unused annual leave;

29. Third, the complainant stated that he had personally delivered the documents pertaining to his request for special leave to the CoR's medical and administrative services. In addition, he sent those documents to the CoR by fax and provided the related fax delivery confirmations. The complainant was surprised that the CoR could not find the documents in question. He had copies of those documents and could provide them again upon request;

30. Finally, the complainant again emphasised that between 17 and 28 September 2007 he worked (albeit part-time). This should be compensated.

The Ombudsman's assessment

31. The Ombudsman understands that, essentially, the complainant disagrees with the CoR's calculations concerning his: (i) travelling time in 2004; (ii) annual leave in April 2007; (iii) special medical leave in July 2007; and (iv) part-time work in September 2007, considered by the CoR as holidays. The Ombudsman will deal with each of these points separately.

Travelling time in 2004

32. The Ombudsman notes that from 16 August to 30 November 2004, the complainant worked as a member of the CoR's auxiliary staff. During this period of time, his working relationship was thus governed by Articles 51 to 78 of the Conditions of Employment of Other Staff of the European Communities ('the CEOS'). Those rules declare which provisions of the Staff Regulations are applicable to auxiliary agents. Article 58 of the CEOS foresees that auxiliary agents are, exceptionally, granted the special leave provided for in Article 6 of Annex V to the Staff Regulations[19]. The above article does not make a similar "renvoi" to Article 7 of Annex V to the Staff Regulations, which provides for travelling time. Consequently, the CoR appears to be correct in assuming that, at a time when he was a member of its auxiliary staff, the complainant did not enjoy any right to travelling time with regard to the paid annual leave.

33. On 1 December 2004, the complainant became a Temporary Agent. The rules applicable to the institutions' temporary staff are provided for in Articles 8 to 50a of the CEOS. According to those rules, as per Annex V of the Staff Regulations, the institutions' temporary staff enjoy the same amount of leave as officials[20]. Consequently, it would appear that, in principle, the complainant could have benefitted from four days of travelling time being added to the two working days of annual leave that he was given in December 2004 as a Temporary Agent[21].

34. In this respect however, the Ombudsman notes the CoR's references in its Decision and opinion to the CoR's Decision No. 292/04[22]. Article 1 ('Annual leave') of Decision No. 292/04 provides that "[o]fficials entering the service are granted annual leave only after completing three months' duty. Leave may be approved earlier than this period in exceptional cases, for reasons duly substantiated." Similarly, Article 1(2) ('Travelling time in connection with annual leave') of Decision No. 292/04 provides that "[n]ew officials entering the service before October shall be allowed the full travelling time for that year; otherwise, no travelling time will be given." It follows that, in order to fully benefit from annual leave and travelling time, a member of the CoR's temporary staff must enter into service on 30 September at the latest.

35. The complainant argues that he entered the service on 16 August 2004. Notwithstanding this fact, it is undisputed that the complainant only became a Temporary Agent on 1 December that year. Consequently, although the complainant did "enter the service" of the CoR before 1 December 2004, the benefit of travelling time, applicable only to officials and, by analogy, to temporary agents, became fully applicable to the complainant only on this latter date. Not having fulfilled the requirements of Decision No. 292/04, the complainant did not have any right to benefit from travelling time in 2004. It follows that no maladministration can be found as regards this aspect of the complaint.

Annual leave in April 2007

36. In its Decision and opinion, the CoR stated that the complainant took five days of holidays between 11 and 15 April 2007. However, as rightly pointed out by the complainant, 14 and 15 April 2007 were a Saturday and a Sunday[23] respectively. In addition, the document entitled: (as per the original French version) "Fiche de transfert - situation des congés enregistrés pendant la période du : 01/01/2007 au 31/12/2007", signed and stamped by the CoR's Personnel Unit, enclosed by the complainant with his observations, clearly shows that the complainant took no holidays in April 2007.

37. However, the aforementioned document, which the complainant enclosed with his observations, also attests that the complainant took annual leave between 11 and 15 June 2007, a fact never mentioned in the CoR's Decision or in its opinion. In light of the obvious similarities between the dates in question, the Ombudsman considers it likely that the CoR made a mistake in both its Decision and its opinion and that the period during which the complainant was on holidays was the period between 11 and 15 June 2007. In light of the fact that the complainant himself confirms that he was on annual leave for a week in June 2007[24] and does not contest the references made to that period in the "Fiche de transfert" enclosed with his observations, the Ombudsman finds the complainant's related claim for compensation unjustified.

38. Consequently, no maladministration can be found as regards this aspect of the complaint.

Special medical leave in July 2007

39. The Staff Regulations only allow temporary agents to be absent from their work without prior authorisation from their immediate superiors in very limited cases[25].

40. The complainant argues that between 2 and 4 July 2007 he was outside Brussels on a medical consultation.

41. Article 5(13) ('Special leave for a medical consultation away from the place of employment') of Decision No. 292/04 provides that "[s]uch a special leave is only granted in very exceptional circumstances, on the basis of an opinion delivered by the Medical Officer of the institution, and with prior permission from the appointing authority... Special leave of this kind ranges from one day (for medical examinations) to three days (in case of hospitalisation and tests)."

42. On a similar note, the CoR's Decision No. 288/04 concerning rules applicable to staff regarding sickness and accident leave ('Decision No. 288/04')[26], referred to in the Decision and the CoR's opinion, provides that when a member of the CoR's staff wishes to attend a medical examination away from his or her place of employment, he or she must submit, at least two weeks before his or her departure, a request for authorisation, accompanied by appropriate medical advice[27]. The information provided by the CoR in the form enclosed by the complainant with his complaint confirms that a request for special leave for medical examination, or for treatment abroad, should be submitted to the medical service at least ten days before the departure[28].

43. The complainant argues that he submitted all the necessary documents to request special leave on 21 December 2007. It follows that the necessary request for authorisation would have reached the CoR almost six months after the consultation in question took place. Consequently, the complainant did not comply with the applicable rules.

44. In light of the above, no maladministration on the part of the CoR can be found as regards this aspect of the complaint.

Holidays/part-time work in September 2007

45. According to Article 1(5) of Decision No. 292/04, "[a]nnual leave must be used up before leaving the service. However, in very exceptional cases, when the needs of the service prevent officials from using up their days of annual leave beforehand, they may claim compensation... Payment for unused days of leave will only be approved on presentation of a request for leave "refused for reasons [concerning] the [interests] of the service" authorised by the signature of the Director for Administration." It follows that, unless the CoR's management decides otherwise, staff must exhaust their holiday time before leaving the service.

46. According to the Director's e-mail of 17 September 2007 to the complainant, the complainant's remaining annual leave exceeded the time of work he had left before the end of his contract. It follows that, in accordance with the applicable rules, the complainant should have departed on annual leave immediately. This had further been made clear to the complainant when the Director confirmed that the interests of the service that could not prevent him from taking the leave, as stated in the applicable rules.

47. The complainant argues that he had been given medical advice to work part-time, which would have, moreover, made it necessary for him to comply with the interests of the service. This, however, is clearly an insufficient reason for the complainant to question the CoR`s ability to prevent him from using up his days of annual leave before the end of his contract. The Ombudsman first notes that it appears that the complainant never submitted a request to work part-time. For one thing, the complainant never stated that he had asked his superiors for permission to work part-time. Second, the Ombudsman agrees with the view expressed by the CoR that it was for the complainant's superiors to determine whether it would or would not be in the interests of the service if that he were to take leave during that period. The complainant's personal assessment of the interests of the service cannot be decisive.

48. In light of the above, no maladministration can be found as regards this aspect of the complaint.

B. Conclusion

On the basis of his inquiry into this complaint, the Ombudsman closes it with the following conclusion:

No maladministration can be found as regards the complaint.

The complainant and the President of the CoR will be informed of this decision.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 17 October 2011

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[1] Article 57 of the Staff Regulations: "[o]fficials shall be entitled to annual leave of not less than 24 working days nor more than 30 working days per calendar year..."

[2] Article 1 of Annex V of the Staff Regulations: "[i]n the year in which an official enters or leaves the service, he shall be entitled to two working days' leave per complete month of service, to two working days for an incomplete month consisting of more than 15 days and to one working day for an incomplete month of 15 days or less."

[3] Article 2 of Annex V of the Staff Regulations: "[a]nnual leave may be taken all at once or in several periods as desired by the official and according to the requirements of the service..."

[4] Article 4 of Annex V of the Staff Regulations: "[w]here an official at the time of leaving the service has not used up all his annual leave, he shall be paid compensation equal to one thirtieth of his monthly remuneration at the time of leaving the service for each day's leave due to him..."

[5] Article 6 of Annex V of the Staff Regulations: "[i]n addition to annual leave, an official may, on application, be granted special leave."

[6] Article 7 of Annex V of the Staff Regulations: "[t]o the period of leave... shall be added travelling time based on the distance by rail between the place of leave and the place of employment... [T]he place of leave in respect of annual leave shall be the place of origin..."

[7] Article 16 of the Conditions of Employment of Other Servants of the European Communities ('the CEOS'): "Articles ... 55 to 61 of the Staff Regulations, concerning leave ... shall apply by analogy. Special leave... shall not extend beyond the term of the contract..."

[8] Article 58 of the CEOS: "[a]uxiliary staff shall be entitled to paid leave at the rate of two working days per month of service; any period of less than 15 days' or half a month's service shall carry no leave entitlement... In addition to such leave, a member of the auxiliary staff may, in exceptional circumstances and at his own request, be granted special leave in accordance with rules laid down by the institution on the basis of the principles set out in Article 57 of the Staff Regulations and Article 6 of Annex V to the Staff Regulations."

[9] The complainant's place of origin was 1082 km from Brussels). According to Article 7 of Annex V of the Staff Regulations: "[9]01 to 1 400 km [correspond to] four days of the outward-and-return journey..."

[10] The CoR referred to its Decision No. 292/04 concerning rules applicable to staff regarding annual and special leave entitlements (the 'Decision No. 292/04') according to which "[n]ew officials entering the service before 1 October shall be allowed the full travelling time for that year; otherwise, no travelling time will be given. Travelling time may not be carried over. Officials entering the service by the date stated above who are entitled to travelling time must take their travelling time together with one day of annual leave before the end of the calendar year in question."

[11] See footnote 10.

[12] The Staff Notice mentioned Decision No. 292/04 and the CoR's Decision No. 288/04 (in its original French version): "concernant les règles applicables au personnel en matière de droits à congé de maladie ou d'accident". According to Decision No. 292/04: "5.13 Special leave for a medical consultation away from the place of employment [:] Such special leave is only granted in very exceptional circumstances, on the basis of an opinion delivered by the Medical Officer of the institution, and with prior permission from the appointing authority (Article 60 of the Staff Regulations). Special leave of this kind ranges from one day (for medical examinations) to three days (in the case of hospitalisation and tests)." Relatedly, Decision 288/04 provides (in the original French) "Article 11 'Examen médical ou traitement médical dehors du lieu d'affectation' [:] Le fonctionnaire peut, le cas échéant, bénéficier d'un congé spécial pour se soumette à un examen médical ou à un traitement spécifique de nature médicale en dehors du lieu d'affectation et d'un délai de route éventuel à titre exceptionnel. Pour bénéficier de ces dispositions, l'intéressé(e) doit introduire, impérativement deux semaines avant le départ envisagé, le formulaire "demande d'autorisation de séjourner en dehors du lieu d'affectation", accompagné d'un dossier médical circonstancié, auprès du médecin-conseil de l'institution qui le transmet, accompagné de son avis, à l'AIPN ..." (emphasis added by the CoR)

[13] In this regard, the CoR referred to a "Decision No. 304/04", which, according to the CoR, provided that officials working for at least nine months benefited from a (as per the original French version) "paiement forfaitaire intégral des frais de voyage" between the place of their origin and that of their recruitment.

[14] According to Decision No. 292/04: "1.5 Termination of service [:] Annual leave must be used up before permanently leaving the service. However, in very exceptional cases, when the needs of the service prevent officials from using up their days of annual leave beforehand, they may claim compensation as provided for in the second paragraph of Article 4 of Annex V to the Staff Regulations. Payment for unused days of leave will only be approved on presentation of request for leave "refused for reasons concerned with the requirements of the service", authorised by the signature of the Director for Administration ...".

[15] "[The CoR] recruited me with numerous breaches of law... So many contracts or prolongations of contracts are not allowed by the Staff Regulations. I legitimately expected that my employment would continue. The CoR had no respect for my legitimate expectations. It decided unilaterally that my contract would abruptly stop, even though I received no formal notice required by the rules... Was [the CoR] not aware of the fact that a formal notice of at least three months was needed according to the rules?... Unfortunately, the CoR did not respect law in this case..."

[16] Article 2(4) of the Statute of the European Ombudsman: "A complaint shall be made within two years of the date on which the facts on which it is based came to the attention of the person lodging the complaint and must be preceded by the appropriate administrative approaches to the institutions and bodies concerned."

[17] The Ombudsman also enclosed the documents concerning complaint 2066/2009/JF.

[18] See Decision of the General Court (First Chamber) of 29 March 2007 in Case T-368/04, Verheyden v Commission, Paragraphs 56, 61, 63, and 70 to 72: (in the original French):

"[c]’est uniquement dans la limite des jours de congé annuel qui n’ont pas été pris en raison des nécessités du service que l’article 4, deuxième alinéa, de l’annexe V du statut ouvre au fonctionnaire ayant cessé ses fonctions le bénéfice de l’indemnité compensatoire prévue par cette disposition. Les termes « nécessités du service » doivent être interprétés comme visant des activités professionnelles empêchant le fonctionnaire, du fait des devoirs de sa charge, de bénéficier du congé annuel auquel il a droit.

Cette notion ne peut être interprétée comme recouvrant l’hypothèse où le fonctionnaire a été placé en congé de maladie, et ce même en cas de maladie prolongée. En effet, ainsi qu’il ressort des dispositions de l’article 59, paragraphe 1, premier alinéa, du statut, selon lesquelles un fonctionnaire ne bénéficiera d’un congé de maladie que s’il « justifie être empêché d’exercer ses fonctions », dans une telle situation le fonctionnaire est, par définition, dispensé d’exercer ses fonctions et n’est donc pas en service au sens de l’article 4, premier alinéa, de l’annexe V du statut.

Par ailleurs, pour justifier une demande de report de congé, le fonctionnaire ne peut pas non plus se prévaloir de sa charge de travail lorsque l’administration a estimé que cette charge ne l’empêchait pas de prendre ses congés. En effet, il n’appartient pas au fonctionnaire d’apprécier si l’intérêt du service exige qu’il ne puisse pas prendre congé pour réaliser certaines tâches et reporter les jours correspondants sur l’année suivante, ces appréciations étant du seul ressort de sa hiérarchie. L’administration dispose à cet égard d’un large pouvoir d’appréciation et le contrôle du juge communautaire se limite à savoir si elle s’est tenue dans des limites raisonnables et n’a pas usé dudit pouvoir de manière manifestement erronée, sans que le juge substitue sa propre appréciation à celle de l’administration."

[19] Article 58 of the CEOS: "[I]n addition to [paid] leave, a member of auxiliary staff may, in exceptional circumstances and at his own request, be granted special leave in accordance with rules laid down by the institution on the basis of the principles set out in Article 57 of the Staff Regulations and in Article 6 of Annex V to the Staff Regulations." (emphasis added) Article 6 of Section 2: Special leave of Annex V of the Staff Regulations: "[i]n addition to annual leave, an official may, on application, be granted special leave..."

[20] Article 16 of the CEOS: "Articles ... 55 to 61 of the Staff Regulations concerning leave... shall apply by analogy..." Article 57 of the Staff Regulations: "[a]part from ... annual leave an official may, exceptionally on application, be granted special leave. The rules relating to such leave are laid down in Annex V." (emphasis added)

[21] Article 1 of Section 1: Annual leave of Annex V of the Staff Regulations: "[i]n the year in which an official enters ... the service, he shall be entitled to two working days' leave per complete month of service..." Article 7 of Section 3: Travelling time of the above Annex V provides that "[t]o the period of leave provided for in Section 1 above shall be added travelling time based on the distance by rail between the place of leave and the place of employment, calculated as follows: ... - 901 to 1 400 km: four days for the outward-and-return journey... For the purpose of this Article, the place of leave in respect of annual leave shall be the place of origin..."

[22] The complainant provided a copy of Decision No. 292/04 with his complaint.

[23] http://www.google.com/calendar

[24] In his e-mail of 18 September 2007 to the Director, the complainant stated the following: "I took two-weeks of holidays in March this year. Then again in June I took one week of holidays." (emphasis added)

[25] See footnote 20 above and Article 60 of the Staff Regulations: "[e]xcept in case of sickness or accident, an official may not be absent without prior permission from his immediate superior... If an official wishes to spend leave elsewhere than at the place where he is employed he shall obtain prior permission from the appointing authority."

[26] The complainant provided a copy of Decision No. 288/04 with his complaint.

[27] As per the original French version of Decision No. 288/04, "Article 11 - Examen médical ou traitement médical dehors du lieu d'affectation. Le fonctionnaire peut, le cas échéant, bénéficier d'un congé spécial pour se soumette à un examen médical ou à un traitement spécifique de nature médicale en dehors du lieu d'affectation et d'un délai de route éventuel à titre exceptionnel. Pour bénéficier de ces dispositions, l'intéressé(e) doit introduire, impérativement deux semaines avant le départ envisagé, le formulaire "demande d'autorisation de séjourner en dehors du lieu d'affectation", accompagné d'un dossier médical circonstancié, auprès du médecin-conseil de l'institution qui le transmet, accompagné de son avis, à l'AIPN..."

[28] The "Congé spécial pour visite médicale ou traitement médical a l'étranger" form provided by the complainant includes the following statement (in the original French): "[a] envoyer au Service Médical au moins 10 jours avant le départ envisagé".