EU Court of Justice crashes "Asian despotism" of the EU General Court, Strack, C-579/12 RX-II

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.

ESRC forbids reduction of social rights during economic crisis, GENOP-DEI v Greece, 65/2011

Due to the economic crisis, Greece issued new law allowing dismissal of a person with indefinite contract during a probation period of 12 months without notice (§§ 8, 14). The European Social Rights Committee reminded the Greek Government that in the general introduction to its Conclusions XIX-2 (2009) the Committee dismissed any possibility of reducing social rights during an economic crisis, since it is the time when the beneficiaries need the protection most (§ 16).

The Greek Government tried to maintain that the trial nature of the period justifies the initial instability of employment (§§ 23-24), but the Committee replied that the concept of trial period may not be interpreted so broadly that the notice and severance pay guarantee would become ineffective (§ 26).

Thus, Greece violated Article 4(4) on the right to reasonable dismissal notice of the European Social Charter.

Suing State for the right of a doctor to refuse making abortion is declared admissible by the European Social Rights Committee, IPPF EN v Italy, 87/2012

The International Planned Parenthood Federation – European Network sued Italy before the European Social Rights Committee for violation of Articles 11 (right to health) and E (non-discrimination) of the European Social Charter due to the existing in Italy right of a doctor to refuse making abortion for the reasons of consciousness.

The Italian Government argued that the State couldn’t limit the number of medical personnel on the ground of their beliefs (§ 7). The Committee dismissed this argument as relating to merits, and declared the action admissible (§ 8).