Roj: SAN 2875/2012 Cendoj Id: 28079230042012100272 Body: National Court. Contentious Chamber Venue: Madrid Section: 4 Appeal No.: 357/2011 Resolution No.: Procedure: CONTENTIOUS Speaker: JOSE LUIS REQUERO IBAÑEZ Type of Resolution: Judgment SENTENCE Madrid, June twenty-seventh, two thousand twelve. The Chamber composed of the Hon. Judges related in the margin has examined the contentious-administrative appeal number 357/2011, filed by the SPANISH ASSOCIATION OF AIRLINES (AECA), represented by the Procurator of the Courts Ms. Eva Maria Escolar Escolar against the resolution of the Ministry of Labor and Immigration; having been part of these proceedings, in addition to the plaintiff, the General State Administration, represented by the State Advocacy.
I. FACTUAL BACKGROUND FIRST.- This jurisdictional appeal is filed against the resolution of June 8, 2011, of the Ministry of Labor and Immigration, which partially upholds the appeal against the Resolution of the State Public Employment Service of December 23, 2010, and orders the reimbursement of 18,877.09 euros, plus late payment interest, as part of the subsidy granted under Order TAS/2388/2007, of August 2, reimbursement referring to Training Action 2 on «Dangerous Goods» and rejected because it does not refer to occupational safety and risk prevention or target self-employed and social economy workers.
SECOND.- Once this jurisdictional appeal was filed, admitted for processing and announced in the Official Journals, the administrative file was requested; once received, the plaintiff was given the opportunity to submit a Complaint within the legal deadline.
THIRD.- The plaintiff bases its claims, in summary, on the following arguments: 1st Neither the original act nor the resolution partially upholding the appeal provide further reasoning beyond telegraphic reasons for rejecting that Training Action, as they are limited to denying that it refers to occupational risks and that it is not aimed at self-employed and social economy workers. 2nd It states that this Training Action is about occupational safety and risk prevention, for which it refers to Article 1 and Additional Provision 7 of Law 31/1995, of November 8, and indicates that the handling and transportation of dangerous goods imply implicit and occupational risks, citing for this purpose the regulations applicable to the air transport of dangerous goods, especially RD 1749/1984, of August 1. 3rd As for the participants, they comply with the co-financing areas.
FOURTH.- In accordance with these grounds, the plaintiff’s claim is to annul the aforementioned acts, plus costs.
FIFTH.- After granting the State Attorney the opportunity to present its opposing claim, it is based on the fact that the plaintiff repeats what was said before the Administration and that the Training Action referred to transport safety, not occupational risks and accidents. It adds that from the file it can be deduced that the recipients were not self-employed or workers in the social economy.
SIXTH.- Denied by Order of February 20, 2012, the admission of evidence in the lawsuit and the amount of the present lawsuit fixed at 18,877.09 euros, after submitting conclusion statements, it was agreed to set the date for voting and judgment on June 20, two thousand twelve, at 10:30 a.m.
SEVENTH.- That in the processing of this case, the legal prescriptions provided in Law 29/1998, of July 13, regulating the Contentious-Administrative Jurisdiction (LJCA), and in the other concordant and supplementary provisions thereof, have been observed. The Hon. Mr. Justice D. JOSE LUIS REQUERO IBAÑEZ, President of the Section, being the rapporteur, who expresses the opinion of the Chamber in accordance with the following
II. LEGAL GROUNDS FIRST.- The plaintiff was the beneficiary of a subsidy called under the Resolution of August 14, 2007, of the State Public Employment Service, for the execution of training plans through agreements, of a national scope, directed primarily at employed workers. This call was made in application of Order TAS/2388/2007, of August 2, which regulates supply training and establishes the regulatory bases for the granting of public subsidies aimed at its financing.
SECOND.- As stated in the Facts of this Judgment, the litigation focuses on the two reasons for excluding Training Action 2 from being eligible. First, because it deals with safety in transportation and not with occupational safety and risk prevention; second, because it was not aimed at self-employed and social economy workers, but was aimed at employees and unemployed individuals.
THIRD.- Regarding the first reason for exclusion, the difference is clear, in principle. The transportation of dangerous goods affects, first and foremost, the safety of the means of transport used and the transported goods, hence the regulation regarding the type of goods, packaging, labels, handling, etc. All this requires specific training (cf. point 10.1 of the Regulation approved by Royal Decree 1749/1984, of August 1).
FOURTH.- Training in safety and occupational risks, if it focuses on air transportation and, within this, on dangerous goods, aims to train workers in everything related to their safety and health. Regarding the former, they are juxtaposed but distinguishable areas, as can be deduced from Additional Provision 7 of Law 31/1995, of November 8, on Occupational Risk Prevention, which provides that what is regulated in that law is understood without prejudice to compliance with the obligations derived from the regulation on the transport of dangerous goods.
FIFTH.- In the proposal submitted by the plaintiff, Training Action 2 -«Dangerous Goods»- was part of a Training Area called «Occupational Risk Prevention» (page 1072), which included the one in question plus the following Training Actions: 9, «Cabin Crew Refresher and Emergencies (Airbus)»; 12, «Occupational Risk Prevention in the Aeronautical Sector remotely»; 15, «Cabin Crew Refresher and Emergencies (Boeing)»; 17, «Forklift Driving»; 18, «Occupational Risk Prevention Technician. Ergonomics and Psychology Specialty»; 19, «Occupational Risk Prevention: Safety Specialty»; 20, «Occupational Risk Prevention: Hygiene Specialty» and 21 «Occupational Risk Prevention: Ergonomics and Psychology Specialty».
SIXTH.- According to that proposal (page 1074), the Training Action was aimed at personnel in contact with dangerous goods and its objective was to know the different types of dangerous goods so that the worker could classify, label, and know how to handle them; prepare staff for proper handling, know regulatory changes, improve professional skills, basic notions about the environment, provide knowledge for the transport of such goods, and their actions in emergency situations. It had four Didactic Units referred respectively to «Presentation and admission of goods», «Classification of Goods», «Labeling», «Harmful, dangerous agents, composition», «national European and international regulations» (cf. page 78).
SEVENTH.- From the above, it can be deduced that it is not easy to distinguish
what pertains to air traffic safety when it concerns dangerous goods and what pertains to the safety and prevention of risks for the workers themselves. However, from the contents exposed, plus their contrast with the content of the other Training Actions in that Training Area, Training Action 2 was rather directed towards what is the regime of the transportation of dangerous goods.
EIGHTH.- The above is sufficient to dismiss the appeal, but the other reason for exclusion also applies. Indeed, it is enough to see the list of attendees to the Groups of this Training Action (pages 1455 to 1499) to deduce that they all worked for different companies in the sector and that regarding each of them it was noted in the box «no» that they were not workers of the social economy.
In accordance with Article 139.1 of the Law on Contentious-Administrative Jurisdiction, costs are not imposed due to the absence of recklessness or bad faith.
WE RULE That by dismissing the contentious-administrative appeal filed by the representation of the SPANISH ASSOCIATION OF AIRLINES (AECA) against the resolutions mentioned in the First Factual Background of this Judgment, we must declare and declare them lawful, confirming them; no costs are imposed.
Thus, by this our Judgment, against which no appeal is possible, we pronounce, order, and sign.
PUBLICATION.- On the same day of its date, the foregoing Judgment was read and published by The Hon.
Mr. Justice Speaker, being constituted in Public Hearing, of which I, the Secretary, attest.