CELEX: C1998/184/23
Language: en
Date: 1998-06-13 00:00:00
Title: Action brought on 1 April 1998 by the European Association of Craft, Small and Medium-Sized Enterprises (UEAPME) against the Council of the European Union (Case T-55/98)

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
 ---pagebreak--- 13.6.98                EN                 Official Journal of the European Communities                                  C 184/13
     provision in which the UEAPME's right to participate            Action brought on 6 April 1998 by Antonio Giannini
     in negotiations is recognized;                                    against the Commission of the European Communities
                                                                                            (Case T-57/98)
Ð order the Council to pay the costs.                                                        (98/C 184/24)
                                                                                    (Language of the case: French)
Pleas in law and main arguments adduced in support:
                                                                     An action against the Commission of the European
This action concerns the second directive to implement an            Communities was brought before the Court of First
agreement concluded by management and labour at                      Instance of the European Communities on 6 April 1998
Community level on the basis of the Agreement on social              by Antonio Giannini, residing in Brussels, represented by
policy annexed to the Protocol on social policy annexed to           Marc Dallemagne and Carlo Locchi, of the Brussels Bar.
the Treaty of Rome as amended by the Maastricht Treaty.
The applicant, an employers' association combining small
and medium-sized undertakings at European level,                     The applicant claims that the Court should:
challenges that directive, in so far as it concerns those
undertakings. The first directive pursuant to the
                                                                     Ð rule that the present case is connected with Case
abovementioned agreement (1) was also the subject of an
                                                                         T-282/97 and order that it be joined therewith;
action brought by the same applicant (2).
                                                                     Ð annul the defendant's decision to fill post COM/062/
The pleas in law and main arguments put forward by the                   97 by appointing another person thereto;
applicant in the present case repeat to a large extent those
relied on in Case T-135/96 UEAPME v. Council.
                                                                     Ð annul the defendant's decision No 6872 of
                                                                         18 December 1997 rejecting complaint No R/560/97,
In the applicant's view, the contested directive infringes its           which was notified to the applicant on 6 January
right to participate in negotiations, the freedom of                     1998;
association of small and medium-sized enterprises and the
principles which lie at the basis of social democracy. In its
                                                                     Ð order that the applicant be paid compensation for the
view, the Commission was under an obligation not only to
                                                                         damage suffered by him, amounting to the difference
ascertain the representativeness of the signatories to the
                                                                         between the applicant's current salary and the salary
framework agreement but also and above all to ascertain
                                                                         which he would have received in the post at issue
the representativeness of the other employers and workers
                                                                         since 28 April 1995;
who had also demonstrated a wish to participate in
negotiations, in particular where one of them represents
those enterprises whose interests are specifically                   Ð order the defendant to pay all of the costs.
mentioned in Article 2(2) of the Agreement on social
policy. It is in that way also that the contested directive
breaches that provision.                                             Pleas in law and main arguments adduced in support:
Likewise, the directive at issue infringes Articles 3 and 4          With regard to the facts of the case, the applicant refers to
of the agreement inasmuch as the Commission, in the                  the claims already advanced by him in Case T-282/97 (1),
interests of ensuring balanced support for the parties to            which form, according to the applicant, an integral part of
social dialogue, should have drawn the attention of the              the present application. The applicant pleads misuse of
other partners to the need to include the UEAPME in the              powers, since the contested decision was taken not in the
negotiating process rather than draw a distinction between           interests of the service but with a view to offering one of
general inter-trade organizations and the others.                    the applicant's colleagues a promotion which that
                                                                     colleague did not deserve. According to the applicant, that
                                                                     person did not fulfil, at the time of his appointment, the
                                                                     conditions attaching to the duties which he was carrying
Finally, the applicant claims that the adoption of the
                                                                     out.
directive at issue breaches the principles of patere legem
quam ipse fecisti and equal treatment.
                                                                     In addition, the applicant contests the defendant's refusal
(1) Council Directive 96/34/EC of 3 June 1996 on the framework       to inform him of the merits of the other candidates. The
    agreement on parental leave concluded by UNICE, CEEP and         applicant considers that that refusal can only have been
    the ETUC (OJ L 145, 19.6.1996, p. 4).                            intended to protect the appointment of an official who did
(2) Case T-135/96 UEAPME v. Council (OJ C 318, 26.10.1996,           not possess the qualifications required.
    p. 21).
                                                                     Lastly, the applicant repeats his application for
                                                                     compensation for the material and non-material damage