# C_2011186EN.01001102.xml

| 25.6.2011 | EN | Official Journal of the European Union | C 186/11 |
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25.6.2011

EN

Official Journal of the European Union

C 186/11

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Reference for a preliminary ruling from the Oberlandesgericht Innsbruck (Austria) lodged on 18 March 2011 — Tyrolean Airways Tiroler Luftfahrt Gesellschaft mbH v Betriebsrat Bord der Tyrolean Airways Tiroler Luftfahrt Gesellschaft mbH

(Case C-132/11)

2011/C 186/19

Language of the case: German

Referring court

Referring court

Oberlandesgericht Innsbruck

Parties to the main proceedings

Parties to the main proceedings

Appellant: Tyrolean Airways Tiroler Luftfahrt Gesellschaft mbH

Appellant:

Respondent: Betriebsrat Bord der Tyrolean Airways Tiroler Luftfahrt Gesellschaft mbH

Respondent:

Questions referred

Questions referred

| 1. | Does European Union law as currently applicable, in particular in Article 21 of the Charter of Fundamental Rights (in conjunction with Article 6(1) TEU), the general legal principle of European Law (Article 6(3) TEU) relating to the prohibition of age discrimination, and Articles 1, 2 and 6 of Directive 2000/78/EC, (1) preclude a national collective agreement which, in making grade classifications under the collective agreement, and thus determining the level of remuneration, discriminates indirectly against older workers by taking account only of their skills and knowledge which they have acquired as air stewards or stewardesses with one airline but not the substantively identical skills and knowledge which they have acquired with another airline within the same group? Does this also apply to an employment relationship which was entered into before 1 December 2009? |
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1.

Does European Union law as currently applicable, in particular in Article 21 of the Charter of Fundamental Rights (in conjunction with Article 6(1) TEU), the general legal principle of European Law (Article 6(3) TEU) relating to the prohibition of age discrimination, and Articles 1, 2 and 6 of Directive 2000/78/EC, (1) preclude a national collective agreement which, in making grade classifications under the collective agreement, and thus determining the level of remuneration, discriminates indirectly against older workers by taking account only of their skills and knowledge which they have acquired as air stewards or stewardesses with one airline but not the substantively identical skills and knowledge which they have acquired with another airline within the same group? Does this also apply to an employment relationship which was entered into before 1 December 2009?

1

| 2. | Can a national court treat as void and disapply a clause of an individual employment contract which indirectly infringes Article 21 of the Charter of Fundamental Rights, the general legal principle of European Union law relating to the prohibition of age discrimination, and/or Articles 1, 2 and 6 of Directive 2000/78/EC, by analogy with the case of Rieser
   (2) and with the case-law concerning agreements breaching antitrust rules as in the case of Béguelin
   (3) on grounds of the horizontal direct effect of the fundamental rights of the European Union? |
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2.

Can a national court treat as void and disapply a clause of an individual employment contract which indirectly infringes Article 21 of the Charter of Fundamental Rights, the general legal principle of European Union law relating to the prohibition of age discrimination, and/or Articles 1, 2 and 6 of Directive 2000/78/EC, by analogy with the case of Rieser
   (2) and with the case-law concerning agreements breaching antitrust rules as in the case of Béguelin
   (3) on grounds of the horizontal direct effect of the fundamental rights of the European Union?

Rieser

2

Béguelin

3

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(1)  Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16)

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(2)  Case C-157/02 ECR [2004] I-1477.

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(3)  Case C-22/71 ECR [1971] 949.

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