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.
