CELEX: C1996/145/20
Language: en
Date: 1996-05-18 00:00:00
Title: Action brought on 14 March 1996 by Giuliana Gaspari against the European Parliament (Case T-36/96)

No C 145/ 10          EN                  Official Journal of the European Communities                                        18 . 5 . 96
— to pay compensation for the non-material damage                        reserving a post allocated to a Directorate-General to
    suffered, in the sum of Lfrs 300 000 or such other sum as            which a national of one of the new Member States could
    the Court may consider fair and reasonable,                          have been assigned.
— to pay the costs .                                                     Lastly, the applicant pleads misuse of powers in the
                                                                         present case .
Pleas in law and main arguments
The applicant, a grade A 5 official in the Commission's
Directorate-General for Employment, Industrial Relations
and Social Affairs, contests the withdrawal by the
appointing authority of that institution of the measures             Action brought on 14 March 1996 by Giuliana Gaspari
taken to organize the procedure in respect of vacancy notice                         against the European Parliament
COM/116/94 with a view to filling the post of Head of the                                     ( Case T-36/96 )
Health Promotion and Disease Surveillance Unit, and the                                         ( 96/C 145/20 )
decision to fill that post by means of an open competition
and to reserve it for a national of one of the new Member
States .                                                                              (Language of the case: French)
In support of his case, the applicant pleads ;                       An action against the Commission of the European
                                                                     Communities was brought before the Court of First
                                                                     Instance of the European Communities on 14 March 1 996
— breach of general legal principles, in particular the              by Giuliana Gaspari, residing at Sandweiler ( Luxembourg ),
    principles of equality of treatment and the protection of        represented by Jean-Noël Louis, Thierry Demaseure and
    legitimate expectations . He considers in that regard that       Ariane Tornel , of the Brussels Bar, with an address for
    the appointing authority did not include in the text of the      service in Luxembourg at the offices of Fiduciaire Myson
    vacancy notice any qualification to the effect that, if the      SARL, 1 , rue Glesener.
    Commission were to decide, after publication of the
    notice, to reserve the post for a national of one of the
    new Member States, in accordance with a procedure yet            The applicant claims that the Court should :
    to be adopted by the Chamber, the notice could be
    regarded as wholly ineffective in law,                           — annul the decision treating the applicant's absence on
                                                                         5 May 1995 as irregular and deducting it from her
— infringement of Articles 4, 5 , 27 and 29 of the Staff                 annual leave,
    Regulations . He points out in that regard that, while the
    appointing authority is not bound to act on a                    — order the defendant to pay the costs .
    recruitment procedure undertaken pursuant to
    Article 29 of the Staff Regulations, it is nevertheless          Pleas in law and main arguments
    supposed to observe the general principles of law and,
    consequently, that it should have pursued the procedure          The applicant states that on 3 May 1995 her attending
    before initiating a different procedure which, moreover,         medical practitioner issued a certificate of incapacity for
    excluded the participation of the applicant.                     work in respect of the period from 3 to 5 May 1995
                                                                     inclusive. On 4 May the defendant required her to undergo a
    In addition, the Regulation introducing special measures         medical examination arranged by it pursuant to Article
    applicable to the recruitment of officials as a result of the    59 ( 1 ) of the Staff Regulations of officials . At the end of that
    accession of new Member States entered into force on a           examination, the institution's doctor informed her that he
    date subsequent to the publication of vacancy notice             considered her fit to take up her duties again the following
    COM/116/94 and, since it was not given retroactive               day, Friday 5 May . The applicant went back to work on
    effect, it cannot affect the situation as governed by the        8 May. By note of 22 May 1995 the head of the Parliament's
    said vacancy notice .                                            Personnel Division informed the applicant of the decision to
                                                                     treat her absence on 5 May as irregular and to deduct that
    Furthermore, Article 27 of the Staff Regulations refers          absence, in accordance with Article 60 of the Staff
    not to functions but to posts . In consequence, the              Regulations, from her annual leave .
    Commission is supposed to secure a balanced
    geographical representation not among persons within             In opposition to that decision, the applicant pleads, first,
    the organization plan of a Directorate-General but               breach of the obligation to provide a statement of reasons,
    among all posts provided for in the list of posts . It           arguing that the defendant did not state the medical reasons
    follows that the defendant institution could have                why the examining doctor decided to regard the absence on
    observed the principle of recruitment on the broadest            5 May as irregular, thereby precluding any examination of
    possible geographical basis, in particular as regards the        the merits of the contested decision .
    new Member States, while at the same time having
    regard to the general principles of equality of treatment        In addition, the applicant considers that the decision
    and the protection of legitimate expectations, by                disregarded Articles 59 and 60 of the Staff Regulations . She
 ---pagebreak---  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