Directives are addressed to the Member States, Art. 288 TFEU. Hence – and in line with the autonomy of EU civil service law – the provisions of directives are not directly applicable to it, either when legislating civil service law under Art. 336 TFEU or when implementing the SR or CEOS.

On the other hand, there are good reasons why the institutions of the EU should not fall short of the minimum standards that the Member States set for themselves in the legislative instruments that the directives represent. In addition, directives typically contain reasonings which may point to labour law principles and the underlying concepts that motivated the legislation. Regarding how far such considerations can and should influence EU civil service law, a consistent line has not yet emerged and would have to be drawn very carefully, taking into account the special legal character and particular circumstances of the application of EU civil service law.

Altogether, there are four areas in which directives might have an impact on civil service law:

    (1) in cases of an explicit reference in civil service law to the provision of a directive,

    (2) in order to fill a gap in the SR,

    (3) where a directive expresses a general principle of law, and

    (4) as a rule of interpretation in line with the duty to cooperate in good faith.

In more detail:

(1) Explicit reference

A provision may expressly refer to an article of a directive or to a directive as a whole. Art. 1e(2) SR contains a dynamic reference to directives, which the ECJ interprets so widely that all directives relating to health protection (including the organization of working time) are included. There is reason to criticize this as going too far, partly because the SR already contain provisions on the organization of working time, and partly because a softening of the conclusive normative character of the SR would lead to legal uncertainty. In another case too the ECJ applies the reference under Art. 1e(2) SR extensively to the provision of a directive which is thereby extended into a specification of the fundamental right to paid annual leave based on Art. 31(2) FRC. This also raises doubts because, given the existing (SR) rules on annual leave, there is no scope for applying the directive provision by reference, which would otherwise lead to a low (minimum) standard in the protection of fundamental rights.

(2) Filling a gap in the SR

In its judgment on the case, the CST considered that a recourse to directives and international conventions was possible where, in its opinion, civil service law was incomplete, such as in regard to the scope of the obligation to motivate a decision that terminated the employment of a temporary agent. The provision in the directive would make it possible to complement the incomplete regulation under the SR. In the appeal, the GC no longer applied this reference.

(3) General principles of law contained in directives

Provisions contained in a directive may bind an EU institution indirectly if they express a general principle of Union law which is thus applicable to the institution. A general principle of law (not ‘only’ a principle) could, for example, be derived from the considerations contained in the preamble (recitals) of a directive. In such a case it is not the directive itself that becomes the basis, but the general principle derived from it. In Carreras Sequeros, a case in which the extent of annual leave entitlement under Art. 31(2) FRC had to be determined, the GC derived a principle of non-regression concerning standards of social protection from the text of the preamble of Directive 2003/88, and asserted the existence of a desired continuous improvement of working conditions over time. On appeal, the ECJ set the judgment aside. The ideas and reasoning on which a legislative act (directive) relies may contain or be built on a general principle of law that will transpire in the recitals of a directive.

In other instances where case-law refers to directives, it is not even expressly a “general principle” that is invoked, but rather the concept of a certain level of protection afforded to persons under directives within the Member States, which according to the courts the EU institutions in their respective areas of competence shall not fall short of. For these cases, it is submitted that this is the principle that the courts actually refer to: maintaining the level of legal protection within the institutions, as it is established under the directives for the jurisdiction of the Member States. For example, according to Art. 7 of Directive 2002/14 the Member States shall ensure that employees‘ representatives, when carrying out their functions, enjoy adequate protection and guarantees to enable them to perform properly the duties which have been assigned to them. The courts refer to this provision to argue that the dismissal of an employees’ representative on the ground of his or her status or the functions which he or she performs in his or her capacity as a representative is incompatible with the protection required by Art. 7 of that Directive, and apply this to EU civil service.

It should be noted that if general principles determined from directives ultimately lead to an interpretation of fundamental rights under the Charter, there is a risk that secondary law may be used as a standard for fundamental rights. This would be contrary to the hierarchy of norms that demands the opposite: that fundamental rights and other primary law provisions should be used to interpret the content of secondary law. However, the directive itself remains an instrument of secondary law and for that reason cannot alter, let alone overrule, either a provision under the SR or a provision contained in the FRC. It cannot overrule the SR due to the specialised legal nature of the SR, and it cannot overrule the FRC because of the hierarchical structure: the charter is on the level of primary law (Art. 6(1) TEU), and is not subject to a modifying interpretation derived from secondary law.

(4) Duty to cooperate in good faith

In its judgment on Aayhan, the CST had to decide whether a directive may be relied on as regards relations between institutions and their staff. It found that an obligation to interpret the SR in the light of directives can be derived from the principle of sincere cooperation (which at the time was termed “duty to cooperate in good faith”). The Member States have a duty to act in good faith, as do the institutions in relation to the Member States and the institutions amongst themselves. The CST concluded that the directive does not in itself comprise the basis for a plea of illegality against a provision of the SR, but it may be relied on for interpreting the rules of the SR. For instance, the directive’s provisions can make explicit the EU legislature’s intention to make stable employment a prime objective in terms of the European Union’s labour relations.

Consequently, the brief overview of the four areas mentioned above confirms that care should be exercised when resorting to directives (or principles derived from directives) to develop civil service law. In practice, taking into account the comprehensive and autonomous character of the specialised labour law regime as set out in the SR and CEOS, there hardly seems to be any room left for gap-filling or an interpretation in conformity with directives that could not also be filled from within the SR or by recourse to fundamental rights. Such an approach would further curb judicial “creativity” when deducing general principles from secondary legislation, and would therefore increase legal certainty. Conversely, fundamental rights and general principles of law do have an impact on the interpretation of civil service law.