CELEX: C1998/184/22
Language: en
Date: 1998-06-13 00:00:00
Title: Action brought on 30 March 1998 by Anne Ruth Burrill and Alberto Noriega Guerra against the Commission of the European Communities (Case T-51/98)

13.6.98              EN                   Official Journal of the European Communities                                   C 184/11
1. The application for interim measures is dismissed;                Pleas in law and main arguments adduced in support:
2. The costs are reserved.
                                                                     The applicants are all members of the JET project team
                                                                     employed by the United Kingdom Atomic Energy
                                                                     Authority. This application is made consequent to the
                                                                     judgment of the Court in Joined Cases T-177/94 and 377/
                                                                     94 (1). The Commission was the defendant in those cases
                                                                     and the Council participated as intervener. In the
Action brought on 12 February 1998 by Henk Altmann                   judgment, the statutes of the JET Joint Undertaking and
and Others against the European Commission and the                   associated supplementary rules and administrative
               Council of the European Union                         practices were ruled to be illegal in so far as they resulted
                                                                     in unequal treatment of the applicants and the temporary
                       (Case T-30/98)
                                                                     employees of the Communities working together as
                        (98/C 184/21)                                members of the JET Project Team at Culham. Two
                                                                     decisions of the Commission were therefore annulled.
               (Language of the case: English)
                                                                     The applicants now submit firstly that the Commission
An action against the European Commission and the                    has not acted to comply with the judgment by adopting
Council of the European Union was brought before the                 measures to replace the annulled decisions in the light of
Court of First Instance of the European Communities on               the judgment and secondly that the Council has not
12 February 1998 by Henk Altmann and Others,                         amended the statutes. Furthermore, the current proposal
represented by Kenneth Parker QC and Rhodri Thompson                 for amendment of the statutes does not purport to address
with an address for service in Luxembourg at the Offices             the unlawful inequality of treatment found in the
of Elvinger, Hoss & Prussen, 2, Place Winston Churchill.             judgment in respect of the applicants. The Commission,
                                                                     the JET Council and the JET management have not
                                                                     altered either the supplementary rules or the
The applicants claim that the Court should:
                                                                     administrative practices ruled to be unlawful in the
                                                                     judgment and none of the proposals either to take
Ð declare that the rejection of the applicants' complaint            practical steps or to offer a financial settlement are based
    whereby the Commission and the Council failed to                 on the principles laid down in the judgment and the
    take any specific measures vis-aÁ-vis the applicants to          decisions of the Court. The applicants therefore submit
    implement the judgment of the Court in Joined Cases              that the failure of both the Commission and the Council
    T-177/94 and T-377/94 Altmann and Others v.                      to act constitutes a clear breach of Article 149 of the
    Commission of 12 December 1996 is unlawful and a                 Euratom Treaty and a service-related fault sounding in
    service-related fault for which the Commission and the           damages to the extent that such failure has caused the
    Council are liable;                                              applicants material or non-material loss.
Ð order the Commission and the Council to pay the                    (1) Altmann and Others v. Commission [1996] ECR II-2041.
    applicants:
    (a) the individual sums set out in the schedule,
         modified to the date of judgment; and, in the
         event that no order is made in respect of the
         applicants' liability for UK taxation on such
         sums,                                                       Action brought on 30 March 1998 by Anne Ruth Burrill
                                                                     and Alberto Noriega Guerra against the Commission of
    (b) such further sum as may represent:                                            the European Communities
                                                                                            (Case T-51/98)
         (i)   the sum payable by the applicants in respect
               of UK taxation, the quantification of such                                    (98/C 184/22)
               sums being adjourned pending negotiation
               between the parties and the UK tax
               authorities; alternatively                                           (Language of the case: French)
         (ii) the actual liabilities for which the applicants
               are liable to the UK tax authorities, the
               Council and the Commission being liable to            An action against the Commission of the European
               indemnify the applicants in respect of any            Communities was brought before the Court of First
               such contingent liability; and                        Instance of the European Communities on 30 March 1998
                                                                     by Anne Ruth Burrill and Alberto Noriega Guerra
                                                                     residing in RosieÁres (Belgium), represented by Georges
Ð Order the Commission and the Council to bear the                   Vandersanden, Laure Levi and Marie-Ange Marx, of the
    costs of these proceedings.                                      Brussels Bar, with an address for service in Luxembourg at
 ---pagebreak--- C 184/12              EN                  Official Journal of the European Communities                                    13.6.98
the offices of the Fiduciaire Myson SARL, 30 Rue de                  regard to the purpose for which so-called maternity leave'
Cessange.                                                            was introduced and interpreted the wording of Article 58
                                                                     in a manner inconsistent with its aims.
The applicants claim that the Court should:
                                                                     If Article 58 of the Staff Regulations does not authorise
                                                                     the joint exercise of the right to share maternity leave by
1. annul the appointing authority's decision of 24                   common accord, the applicants claim, in the alternative,
     February 1998 refusing the applicants' request of               that that provision is discriminatory and therefore
     1 December 1997 that they, mother and father of the             unlawful.
     child born to them, be permitted to share a part of the
     postnatal leave provided for by Article 58 of the Staff
                                                                     Also in the alternative, they claim that the Commission
     Regulations in the form of half-time work, according
                                                                     failed to have regard to the interest of the service by
     to the time-table drawn up by them for that purpose;
                                                                     refusing to grant the post-natal leave to the applicants
                                                                     jointly in so far as that implies that it considered it to be
2. award the applicants damages quantified on a fair and             preferable for the mother to be absent from her
     equitable basis in the sum of BF 500 000 by way of              department for at least 16 weeks.
     compensation for the harm suffered;
                                                                     As regards the application for damages, the applicants
                                                                     point out that if the Court considers Article 58 of the Staff
3. order the Commission to pay the costs.                            Regulations to be unlawful, the institution cannot give
                                                                     effect to it, which would enable them to share the post-
                                                                     natal leave. It therefore remains only to hold that the
Pleas in law and main arguments adduced in support:
                                                                     contested decision was vitiated by error and that it caused
                                                                     the applicants harm which should be made good.
The applicants explain that they both work for the
European Communities. On 12 February 1998 their child
was born. In the light of the arrival of their child, the
applicants submitted a joint request for permission to
share, in the form of half-time employment, a part of the
post-natal leave provided for by Article 58 of the Staff             Action brought on 1 April 1998 by the European
Regulations of Officials. The defendant institution refused          Association of Craft, Small and Medium-Sized Enterprises
that request on the ground that Article 58 specifically                (UEAPME) against the Council of the European Union
refers to pregnant women in order better to protect their
health and that sharing that leave would therefore run                                       (Case T-55/98)
counter to the provisions of the Staff Regulations.                                           (98/C 184/23)
The applicants consider that decision to be unlawful in so                           (Language of the case: French)
far as it interprets Article 58 of the Staff Regulations in a
manner which is not consistent with its purpose and, by
                                                                     An action against the Council of the European Union was
doing so, infringes that provision. In the case of a normal
                                                                     brought before the Court of First Instance of the European
pregnancy and delivery, the mother does not need 16
                                                                     Communities on 1 April 1998 by the European
weeks in order to recover and regain her normal
                                                                     Association of Craft, Small and Medium-Sized Enterprises
physiological and physical functions enabling her to
                                                                     (UEAPME), established at Brussels, represented by Francis
restart work. Maternity leave is therefore, for the greater
                                                                     Herbert and Daniel Tomasevic, of the Brussels Bar, with
part, designed in the interests of the child which, during
                                                                     an address for service in Luxembourg at the Chambers of
the early stages of its life, requires the full attendance of
                                                                     Carlos Zeyen, 56-58 Rue Charles Martel.
its parents in order to receive care, affection, attention and
constant supervision. The applicants consider it
indisputable that the father of a child can attend to all            The applicant claims that the Court should:
those tasks, which are in no way specific or particular to
women. The conclusion must therefore be drawn that
Article 58 grants a right to the mother which she may                Ð annul Council Directive 97/81/EC of 15 December
exercise in the manner determined by her, in agreement                    1997 concerning the Framework Agreement on part-
with the child's father, and having regard to the interests               time work concluded by UNICE, CEEP and the
of the service. That is the only interpretation consistent                ETUC;
with the purpose of that provision, in the light of general
principles, secondary legislation, case-law and national             Ð annul the said directive only in so far as it applies to
law in the Member States.                                                 the small and medium-sized enterprises mentioned in
                                                                          Article 2(2) of the Agreement on social policy;
The applicants claim that by denying the father the right
to take leave in order to care for the child, in agreement           Ð make a ruling as to the temporary continuation of the
with the mother, the defendant institution failed to have                 annulled provision pending the adoption of a new