CELEX: C1996/145/21
Language: en
Date: 1996-05-18 00:00:00
Title: Action brought on 15 March 1996 by the Luftfartsfunktionærerne against Commission of the European Communities (Case T-37/96)

18 . 5 . 96          EN                   Official Journal of the European Communities                                   No C 145/ 11
points out in that regard that, on the day in question, she            the EC Treaty and Article 53 of the EEA Agreement
was automatically entitled to sickness leave, since she had            ( IV/35.545 — LH/SAS )( 1 ).
sent to her institution in good time a certificate from her
attending medical practitioner prescribing an absence from            The applicant submitted its observations on the
work from 3 to 5 May.                                                  announcements which the Commission, pursuant to
                                                                      Articles 5 ( 2 ) and 16 ( 3 ) of Council Regulation ( EEC )
The institution was entitled to require her to undergo a              No 3975/87 of 14 December 1987 laying down the
medical examination, but was not authorized to leave the              procedure for the application of the rules on competition to
medical certificate out of account and to order the applicant          undertakings in the air transport sector ( 2), published in the
to return to work, even in the event that its medical officer          OfficialJournal ofthe European Communities, and claimed
disputed the validity of the medical certificate which had            in that regard that the Commission ought to make an
been produced . Article 59 ( 3 ) states that cases in dispute are     exemption under Article 85 ( 3 ) of the EC Treaty subject to
to be referred to the Invalidity Committee for an opinion. It         the condition that staff levels in the two undertakings would
follows that the contested decision is unlawful , inasmuch as         not be reduced by more than 1 % over a two-year period .
it was adopted without the Invalidity Committee having                The applicant subsequently learned from the daily press that
delivered an opinion confirming the conclusions of the                the Commission had decided to exempt the Agreement from
medical officer designated by the institution.                        the prohibition set out in Article 85 ( 1 ) of the EC Treaty ( see
                                                                      Article 85 ( 3 ) thereof) but that no conditions had, as
Lastly, the applicant observes that the medical officer did           requested by the applicant, been imposed in that regard
not undertake any clinical examination invalidating the               concerning employment in the two companies .
decision of her attending medical practitioner that she was
unfit for work from 3 to 5 May 1995 . She concludes from              The applicant contends that, even though the decision is
this that such an opinion, which is not based on any medical          addressed to SAS and Lufthansa, its members are directly
finding, has no scientific value and must be vitiated by a            and individually concerned by that decision and that it, as
manifest error of assessment .                                        the body responsible for safeguarding its members '
                                                                      interests, is consequently entitled to bring an action under
                                                                      Article 173 of the EC Treaty.
                                                                      The applicant also argues that the decision constitutes a
                                                                      breach of Article 1 90 of the EC Treaty inasmuch as it fails to
           Action brought on 15 March 1996 by the                     make clear to what extent the safeguarding of jobs was
     Luftfartsfunktionaererne against Commission of the               taken into account as a ground for the decision.
                    European Communities
                        ( Case T-37/96 )                              With regard to the substance of the case, the applicant
                                                                      submits that the decision amounts to a breach of the EC
                          ( 96/C 145/21 )
                                                                      Treaty and of the fundamental rights that form part of the
                                                                      Community's legal order in so far as the Commission failed
                (Language of tbe case: Danish)                        in its decision to impose any requirement regarding the
                                                                      preservation of jobs in SAS and Lufthansa . It argues in this
An action against the Commission of the European                      connection that the Commission, which is required under
Communities was brought before the Court of First                     Article 155 of the EC Treaty to ensure application of the
Instance of the European Communities on 15 March 1996                 provisions thereof, must, when applying Article 85 ( 3 ), take
by the Luftfartsfunktionaererne ( Air Transport Staff                 account of the objectives of the European Community as set
Association ), Kastrup ( Denmark ), represented by Christian          out in the Treaty. Under Article 2 thereof, one of the tasks of
Harlang, of the Copenhagen Bar.                                       the European Community is to promote a high level of
                                                                      employment, and it follows from Article 3 ( i ) that one of the
The applicant claims that the Court should :                         powers of the European Community is to introduce a policy
                                                                      in the social sphere . It follows from the case-law of the Court
— annul the Commission Decision of 16 January 1996                    of Justice and Court of First Instance, and is now laid down
     exempting, under Article 85 ( 3 ) of the EC Treaty, a            in Article F ( 2 ) of the Treaty on European Union, that
     Cooperation Agreement of 11 May 1995 between                     fundamental personal rights are included among the general
     Scandinavian Airlines System and Deutsche Lufthansa             principles of Community law. It is recognized in the
                                                                     constitutions of the Member States and follows from
     AG,
                                                                     numerous international treaties and conventions that the
— order the Commission to pay the costs of the                       right to work constitutes a general fundamental right. In
     proceedings .                                                   adopting the contested decision, the Commission, contrary
                                                                     to fundamental rights under Community law, failed to take
                                                                     account of employment and thereby infringed the right to
Pleas in law and main arguments                                      work of the applicant's members .
The applicant, which is a professional organization
representing staff at Copenhagen Airport, and almost all of           C ) OJ 1996 L 54 , p. 28 .
whose members are employed by Scandinavian Airlines                   ( 2 ) OJ 1987 L 374, p. 1 .
System ( SAS ), contests Commission Decision 96/180/EC of
16 January 1996 relating to a proceeding under Article 85 of