Judgment No. 2938
1. The decision of 28 August 2008 is set aside inasmuch as it upholds that of 24 May 2007.
2. Eurocontrol shall pay the complainant, as appropriate, material damages, as indicated in the judgment, under 9.
3. The Agency shall pay the complainant moral damages in the amount of 5,000 euros.
4. It shall also pay him 5,000 euros in costs.
5. All other claims are dismissed.
"The Tribunal has determined that a staff member on leave on personal grounds is ipso facto no longer performing the duties of his former post and that, although during this leave he continues to be an official, the rights arising from the performance of his duties - remuneration, promotion, guarantee of employment, etc. - are suspended until he is reinstated. In the interests of the service the Agency may therefore use the vacant post (see Judgment 416, under 2). At the end of leave on personal grounds the employer nonetheless has a duty to reinstate the official provided that the two cumulative conditions laid down by [...] Article 40 [of the General Conditions of Employment Governing Servants at the Eurocontrol Maastricht Centre] are met: firstly, there must be a vacant post and, secondly, the staff member must be qualified for it (see Judgment 2034, under 11). This duty must be fulfilled promptly and with due regard for the dignity of the staff member concerned and the principle of good faith."
Organization rules reference: Article 40 of the General Conditions of Employment Governing Servants at the Eurocontrol Maastricht Centre
ILOAT Judgment(s): 416, 2034
complaint allowed; complaint allowed in part; status of complainant; general principle; good faith; organisation's duties; respect for dignity; security of tenure; staff regulations and rules; assignment; vacancy; promotion; period; post held by the complainant; qualifications; reinstatement; salary; accumulation; compassionate leave; special leave; suspension; organisation's interest; condition; consequence; right; safeguard