25 sept. 2013
When the EU General Court hears the case on appeal from the EU Civil Service Tribunal, sometimes the First Advocate General may propose to the Court of Justice of the EU to review the judgment of the EU General Court. This may happen if the General Court judgment “adversely affects the unity and consistency of EU law”. It is interesting to take a look how the latter concept functions in the case Strack, C-579/12 RX-II, won by applicant on 19/09/2013.
Mr. Guido Strack had the right to 38.5 days of annual leave in 2004 that he was unable to take due to illness, and he wanted to transfer those days to 2005, but the EU institutions established that 12 days only might be taken from one year to another (Article 4 of Annex V to the Staff Regulations, § 10). He won at the Civil Service Tribunal, but the EU General Court set aside the first instance judgment.
According to Schultz-Hoff, C-350/06, §§ 22, 23, 25, 41, 45, 50 and 61, Article 7 of Directive 2003/88 implies that in such cases the leave days shall be transferred to the next year (§§ 15, 31), but the EU General Court held that EU directives are not binding on the EU itself – EU directives are binding on Member States only (§ 19, and § 40 of judgment Strack, T-268/11 P).
Voltaire (1694 – 1778) was calling such an attitude “Asian despotism”. The CJEU held that the measure of transferring the leave days “contributes directly to the improvement of health and safety protection for workers” within the meaning of Article 153 TFEU (§ 44). Taking away those days also breaches the principle of the social law of the EU affirmed by Article 31(2) of the EU Charter of Fundamental Rights (§ 46).
On review, the Court of Justice considered that the Directive 2003/88 should be considered as an “integral part of the Staff Regulations as minimum requirements … and without prejudice to the more favourable provisions” (§ 51).
However, the CJEU did not give EU directives a direct binding force on EU itself. According to the CJEU the Directive 2003/88 is binding on the European Commission as far as it “refers to" the Treaty and to the Charter only. Thus, it is difficult to say whether this kind of Asian despotism will not be continued in other cases (§ 52).
What becomes clear from the Strack, C-579/12 RX-II, case is that, at the level of legal strategy, it is good to use a lot the concept of “adverse effect to the unity and consistency of EU law” in all your writings to the EU General Court. You will not be allowed to submit any paper to the First Advocate General. Thus, the only away to attract his attention is to repeat this mantra before the EU General Court. There are indeed hundreds of cases that breach the Charter to the same extent as it was done in case Strack, but the support of the First Advocate General is a lottery.