Orders nº T-155/19 of Tribunal General de la Unión Europea, March 31, 2020

• Resolution Date: March 31, 2020
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-155/19

(Action for annulment and for damages - Civil service - EIF Staff - Tendering by the member of staff of her resignation for personal reasons - Leave due to serious illness starting before the end date of the employment contract chosen by the member of staff - Application for withdrawal of the resignation after the end date of the employment contract chosen by the member of staff - EIF’s refusal to accept the retroactive withdrawal of the resignation - End date of the contract delayed on account of sick leave - Whether Article 33 of the EIF Staff Regulations is applicable - Action in part manifestly inadmissible and in part manifestly lacking any foundation in law)

In Case T-155/19,

AP, represented by L. Levi, lawyer,

applicant,

v

European Investment Fund (EIF), represented by M. Leander, N. Panayotopoulos and F. Dascalescu, acting as Agents, and by P-E. Partsch and T. Evans, lawyers,

defendant,

APPLICATION under Article 270 TFEU and Article 50a of the Statute of the Court of Justice of the European Union seeking, first, annulment of the EIF’s letters of 30 August and 3 October 2018 rejecting the applicant’s request of 20 June 2018, secondly, that the EIF be ordered to pay the applicant the benefits under Article 33 of the EIF Staff Regulations and, thirdly, compensation for the non-material harm that the applicant claims to have suffered,

THE GENERAL COURT (Eighth Chamber),

composed of J. Svenningsen, President, R. Barents and J. Laitenberger (Rapporteur), Judges,

Registrar: E. Coulon,

makes the following

Order

Background to the dispute

1 The applicant, AP, was hired by the European Investment Fund (EIF) in January 1998. After having announced her intention to retire for personal and family reasons in June, July and October 2017, the applicant sent a letter to the Director-General of the EIF on 23 November 2017 in which she tendered her resignation under Article 16 of the Regulations applicable to the staff of the EIF (‘the Staff Regulations’). In that letter, the applicant stated that her employment contract would end on 31 March 2018 and that, because of annual leave which she intended to take before that date, her last day in the office would be 8 February 2018.

2 The EIF did not dispute the end date of the contract indicated by the applicant, which corresponded to a four-month notice period, although, pursuant to Article 17 of the Staff Regulations and as provided for in her contract of employment, the notice period which she was required to give in the event of resignation was only three months.

3 On 27 February 2018, the applicant was diagnosed with [confidential] cancer, (1) she informed the EIF of that diagnosis on 1 March 2018 by email, and asked the department concerned for additional information on the extent of her health insurance cover and the associated costs. On 15 March 2018, she submitted a medical certificate to the EIF in support of her being placed on sick leave, which retroactively covered the period from 9 February to 31 March 2018.

4 The applicant requested the extension at her own expense of medical insurance cover beyond 31 March 2018, in the event to 31 December 2018, in accordance with Article 8(4) of the EIF Staff Rules.

5 In May 2018, the applicant asked the EIF Human Resources Department, by telephone, whether she could withdraw her resignation. That department replied that such a withdrawal was not possible because her resignation had already taken effect.

6 However, by letter of 12 June 2018, the EIF proposed making an exceptional gesture in favour of the applicant by paying her an amount of EUR 10 000.

7 By letter of 20 June 2018, the applicant notified the EIF of her intention to withdraw her resignation and requested it to accept that withdrawal. The applicant considered that on the date on which she had handed in her resignation letter her consent was defective, since she was unaware, first, that she would be diagnosed with cancer on a date on which she was still employed by the EIF, and, secondly, that the EIF would refuse the application of social security cover in her case, as provided for by the Staff Regulations, including by not suspending the notice period, to which she was subject in the case of resignation, for the length of her sick leave. She noted, in that regard, that it was because of her medical situation that she had informed the EIF and had sought in vain the EIF’s assistance in respect of the extension of her employment contract.

8 By letter of 21 June 2018, the applicant rejected the EIF’s offer to pay her an amount of EUR 10 000, reiterated her request for the EIF to accept the withdrawal of her resignation and requested the EIF, in the alternative, to accept that the resignation notice period was, in accordance with Article 33 of the Staff Regulations, suspended from the time of her absence from work on account of her illness, in the event, from 9 February 2018, until the end of her sick leave.

9 By letter of 13 July 2018, the EIF rejected both of the applicant’s requests on the ground that there was no legal basis for it to accept the withdrawal of her resignation or the suspension of the notice period. In particular, the EIF submitted, first, that the applicant’s argument that her resignation was defective on the ground that she was unaware that she would be diagnosed with cancer three months later was not a legal argument ‘per se’ and, secondly, that the applicant’s former post at the EIF had been filled as planned on the basis that the applicant had given as the reason for her resignation her intention to return to her Member State of origin before the end of the notice period. In that context, the EIF, however, renewed its offer of a payment of EUR 10 000.

10 By letter of 17 July 2018, the applicant, whilst conceding that the Staff Regulations did not provide for the suspension of the notice period in the event of sick leave, maintained that those regulations should be interpreted consistently and in line with the Charter of Fundamental Rights of the European Union (‘the Charter’) and the duty of care. That interpretation should, in the applicant’s submission, lead to the creation of an obligation for the EIF to suspend the notice period in the event of illness. That being said, the applicant stated that she was willing to continue discussions with the EIF with a view to agreeing a proper amount to settle the case.

11 By letter of 30...