Orders nº T-499/19 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-499/19

(Action for annulment - Civil service - Officials - Sick leave - Negative opinion by the medical service - Amendments made in the Human Resource Management information system - Acts not amenable to review - Acts not adversely affecting an official - Failure to follow the pre-litigation procedure - Premature challenge - Inadmissibility)

In Case T-499/19,

ZU, represented by C. Bernard-Glanz, lawyer,

applicant,

v

European External Action Service (EEAS), represented by R. Spac and S. Marquardt, acting as Agents,

defendant,

APPLICATION based on Article 270 TFEU seeking annulment of the alleged decisions of the EEAS of 31 August 2018 and 10 January 2019, of the European Commission note of 30 August 2018 providing for a reduction of the applicant’s sick leave and, so far as necessary, of the Commission’s decision of 1 April 2019 rejecting his complaint of 30 November 2018 against that note and against any subsequent decision to deduct his absence from 28 to 31 August 2018 from his annual leave,

THE GENERAL COURT (Seventh Chamber),

composed of R. da Silva Passos, President, I. Reine and L. Truchot (Rapporteur), Judges,

Registrar: E. Coulon,

makes the following

Order

Background to the dispute

1 The applicant, ZU, is an official of the European Union who, at the time of the events giving rise to the present dispute, was assigned to the European External Action Service (EEAS) within the EU Delegation to Russia (‘the Delegation’), having its seat in Moscow (Russia).

2 On 5 August 2018, during a private trip to Poland, the applicant consulted a doctor who issued him with a sick leave certificate (‘the certificate of 5 August 2018’) for the period from 6 to 31 August 2018. The applicant forwarded the certificate of 5 August 2018 to the Commission Medical Service by email of 7 August 2018.

3 On 21 August 2018, when the applicant was on sick leave, the Commission Medical Service asked the applicant to attend a medical examination in Brussels (Belgium). By email of 24 August 2018, the applicant confirmed his availability to attend the medical examination in Brussels on 28 August. He did, however, state that the obligation to attend that medical examination would prevent him from using the flight tickets he had booked in order to attend a previously planned private medical appointment in Poland. He therefore asked the administration to take steps to allow him to reconcile his two medical appointments. By email of the same day, he informed the administration of an itinerary, alternative to a direct return journey from Moscow to Brussels, which included a stop-over in Warsaw (Poland) on the return leg. That alternative itinerary would allow him to be in Brussels on the date desired by the Commission Medical Service and to postpone his other medical appointment by only a few days.

4 On 27 August 2018, after several email exchanges, the Delegation informed the applicant that the mission order that had been prepared for his trip to Brussels provided for a return flight from Moscow to Brussels for the 28 and 29 August 2018, and invited him to sign that mission order. After the applicant again highlighted that there was an alternative itinerary that would allow him to reconcile his two medical appointments, the Delegation replied that such a change would entail additional costs that it did not intend to cover. Having stated that that alternative itinerary could be achieved at a lower price than that proposed by the Delegation and after receiving from the Delegation a message reminding him of his obligation to attend the medical examination in Brussels irrespective of his personal plans in Poland or elsewhere, the applicant amended the mission order in order to insert the alternative itinerary and signed that mission order.

5 On 30 August 2018, following the applicant’s failure to attend the medical examination on 28 August 2018, the Commission’s medical officer drafted a note (‘the note of 30 August 2018’), the contents of which are as follows:

‘…

Upon the request of the administration, [ZU] was summoned to the medical service on 28 [August] 2018. Since he did not attend, without justification, his absence is to be considered unjustified as from 28 [August] 2018.

[Signature]

It is for the [Appointing Authority] to take the decision as to the nature of the leave.

…’

6 By two emails sent to the medical officer on 30 August 2018, the applicant contested that note of the same date.

7 On 31 August 2018, amendments relating to the applicant’s leave (‘the amendments of 31 August 2018’) were made in the Human Resource Management information system, Sysper. According to the applicant, it appears from those amendments that the period of unjustified absence attributed to him amounts to eleven days.

8 By email of 6 September 2018, the medical officer informed the applicant that his absence had to be considered unjustified on the ground that she had not been able to examine him. She specified that the role of the medical officer was to give an opinion, while it was for the Appointing Authority to take a decision as to the nature of the leave.

9 By email of 12 November 2018 (‘the email of...