CELEX: C1996/318/37
Language: en
Date: 1996-10-26 00:00:00
Title: Action brought on 2 September 1996 by Hendrick Smets against the Commission of the European Communities (Case T-134/96)

No C 318/20            EN                   Official Journal of the European Communities                                  26 . 10 . 96
The applicant claims that the Court should:                            The applicant claims that the Court should :
— annul the two decisions of the Secretary-General of the              — annul the Commission's decision of 7 August 1995 ,
    Economic and Social Committee by implication                           fixing the applicant's travelling time at two days, and
    rejecting the applicant's two complaints of 4 February                 also any subsequent similar decision,
    1996 , in particular on the grounds: 1 . that the Economic
    and    Social  Committee       should    have   awarded    the
    applicant the education allowances for his children, Y. ,          — in so far as is necessary, annul the decision adopted by
    M. and L. , for the 1995/ 1996 scholastic year, amounting              the Commission on 17 April 1996 expressly rejecting the
    to a total of Bfrs 1 9 080 , as applied for in the application         applicant's complaint,
    made in that regard dated 31 August 1995 and, further,
    2 . that the Economic and Social Committee should have
                                                                       — declare the Commission's internal directive adopted on
    altered the date from which the allowance was to be paid               21 December 1994 and published in the Administrative
    in respect of M. from 1 September 1995 to 1 August                     Notices on 4 January 1995 illegal and, in consequence,
    1995 ,                                                                 order it to be withdrawn,
— order the Economic and Social Committee to pay the
    costs, including the costs which the applicant has had to          — allow the applicant travelling time of eight and a half
    incur in connection with these proceedings, in particular              days for 1995 and also for subsequent years or at least
    the costs of providing an address for service, travelling              travelling time calculated on the basis of Administrative
    and accommodation expenses, and legal fees.                            Circular No 26a of 6 November 1991 ,
Pleas in law and main arguments adduced in support                    — order the defendant to pay all the costs of the
                                                                           proceedings .
The applicant, a former official receiving an invalidity
pension from the European Communities, applied to the                  Pleas in law and main arguments adduced in support
Economic and Social Committee, first, for the grant of the
variable ( not flat-rate ) education allowance to cover the
travel expenses in respect of his three children and, second,         The applicant, who is the Head of the Commission's
for an increase in the flat-rate education allowance for one           Delegation in the Republic of Chad challenges the decision
of his children .                                                     to limit to two days the travelling time added to his annual
                                                                       leave, taken pursuant to the internal directive adopted by
The first application was by implication rejected, as was the         the Commission on 21 December 1994 . Until then, the
complaint submitted in that regard; the second application            applicant had for several years been entitled to eight and a
was granted, but with effect from a date later than that              half days travelling time, in accordance with Administrative
                                                                       Circular No 26a of 6 November 1991 .
requested by the applicant. The complaint submitted in that
regard was by implication rejected .
                                                                      In support of his application, the applicant pleads, first,
The applicant has now brought an action before the Court              infringement of Administrative Circular No 26a, claiming
for the annulment of those two implied decisions refusing             that it is nowhere stated in the internal directive of
his requests .                                                        21 December 1994 that it annuls or amends the circular in
                                                                      question and that there is no statement of reasons for the
                                                                      directive which might explain why the circular no longer
                                                                      meets requirements and why a sudden major change in
                                                                      travelling time was necessary. He concludes therefrom that
                                                                      the 1991 circular is still applicable and that the contested
                                                                      decision plainly fails to comply with that provision .
Action brought on 2 September 1996 by Hendrick Smets
  against the Commission of the European Communities                  The applicant also pleads breach of the principle of
                        ( Case T-134/96 )                             protection of legitimate expectations, claiming that the
                                                                      defendant     has   caused   him   to   entertain  reasonable
                          ( 96/C 318/37 )
                                                                      expectations as to the length of travelling time in so far as it
                                                                      laid down certain criteria in that regard in provisions
                (Language of the case: French)                        adopted in the form of a circular and applied them for
                                                                      several years . In the applicant's opinion, the fact that the
                                                                      travelling time which he could claim had been reduced
An action against the Commission of the European                      without any reasons at all being given constitutes disregard
Communities was brought before the Court of First                     of established rights and infringement of the principle of the
Instance of the European Communities on 2 September                   protection of legitimate expectations .
1996 by Hendrick Smets, residing at N'djamena ( Chad ),
represented by Nicolas Lhoest, of the Brussels Bar, with an
address for service in Luxembourg at the office of Fiduciaire         Furthermore, he considers that to treat officials serving in a
Myson SARL, 1 rue Glesener.                                           third country in the same way as officials serving within the
 ---pagebreak--- 26 . 10 . 96           EN                  Official Journal of the European Communities                                   No C 318 /21
Community, as the defendant has done with regard to                        small and medium-sized undertakings referred to in
travelling time, constitutes discrimination against officials              Article 2 ( 2 ) of the Agreement on social policy,
serving in a third country. He notes that, in the defendant's
view, an official who is entitled to reimbursement of the cost
of an air ticket on the ground that the distance between his          — order the Council to pay the costs .
place of employment and his place of origin is more than
500 kilometres, whether he is serving in a third country or
within the Community, cannot be allowed more than two                 Pleas in law and main arguments adduced in support
days travelling time unless he produces evidence that he
needs additional time, whereas , in the applicant's view, the         This action concerns the first Directive to implement an
two situations are fundamentally different. The two days'             agreement concluded by management and labour at
travelling time given to officials serving in the Community is        Community level on the basis of the Agreement on social
intended for officials whose place of employment is a few             policy annexed to the Protocol on social policy annexed to
hundred kilometres from their place of origin, whereas                the Treaty of Rome as amended by the Maastricht Treaty .
officials serving in third countries are often several thousand       The applicant, an employers ' association combining small
kilometres from their place of origin, in local conditions            and medium-sized undertakings at European level ,
which make journeys longer and more arduous .                         challenges that Directive , in so far as it concerns those
                                                                      undertakings .
Last, the applicant claims that the directive adopted on
21 December 1994 is unlawful, in that it was adopted
without prior consultation of the joint committees in                 As early as 1983 the Commission drew up a proposal for a
accordance with Article 1 10 of the Staff Regulations, and in         Directive on parental leave and leave for family reasons .
that it contains no valid statement of the reasons on which it        When that proposal was blocked , the Commission decided
is based but does contain numerous instances of                       in January 1995 to make use in this matter of the new
inconsistency,         inaccuracy,        imprecision       and       procedure provided for in the Agreement on social policy .
contradictions .                                                      During the initial consultations with management and
                                                                      labour, in accordance with Article 3 ( 2 ) of the Agreement,
                                                                      the applicant was thus consulted, together with other
                                                                      organizations . It was, by contrast, systematically excluded
                                                                      from the negotiations which led to the adoption of the
                                                                      measure, even though it had on several occasions expressed
                                                                      the wish to be included and given reasons why it should
Action brought on 5 September 1996 by the European                    be .
 Association of Craft, Small and Medium-Sized Enterprises
          against the Council of the European Union
                                                                      The applicant considers that the contested act is of direct
                          Case T-135 /96 )                            and individual concern to it. It observes in that respect that
                          ( 96/C 318/38 )                             Article 2 ( 2 ) of the Agreement on social policy expressly
                                                                      refers to the need not to hold back the creation and
                                                                      development of small and medium-sized undertakings .
                (Language of the case: French)                        More specifically, the question of parental leave is of crucial
                                                                       importance for small and medium-sized undertakings .
 An action against the Council of the European Union was
 brought before the Court of First Instance of the European           The applicant submits that clause 2 ( 3 ) ( f) of the framework
 Communities on 5 September 1996 by the European                       Agreement, by providing merely for the possibility of
 Association of Craft, Small and Medium-Sized Enterprises ,            authorizing special arrangements to meet the operational
 established at Brussels, represented by Francis Herbert, of           and organizational requirements of small undertakings, fails
 the Brussels Bar, and Genevieve Tuts , of the Liege Bar, with         to satisfy the requirement of the said Article 2 ( 2 ), in that an
 an address for service in Luxembourg at the Chambers of               obligation has become a possibility and medium-sized
 Carlos Zeyen, 67 rue Ermesinde .                                      undertakings are not mentioned . The applicant states in this
                                                                       respect that by letter of 13 December 1 995 it made criticisms
 The applicant claims that the Court should :                          of the framework Agreement, concentrating on the
                                                                       following three points : the failure to extend to
     primarily:                                                        medium-sized undertakings the possibility of postponing
                                                                       parental leave for reasons related to the undertaking;
 — annul , pursuant to Article 173 of the EC Treaty, Council           inclusion of a system of exceptions to protection against
     Directive 96/34/EC of 3 June 1996 on the framework                dismissal in cases where the employer's economic interests
     agreement on parental leave concluded by Unice, CEEP              are prejudiced by maintaining the contract of employment
     and the ETUC (').                                                 during and after parental leave ; and the need, with respect to
                                                                       the craft sector, to limit the right to parental leave to the
     in the alternative :                                              period of infancy.
 — annul , pursuant to Article 173 of the EC Treaty, the said          The applicant pleads breach of the principle of equality, of
     Directive with respect solely to its application to the           Articles 2 ( 2 ), 3 ( 3 ) and 4 of the Agreement on social policy,