# C_2013032EN.01000501.xml

| 2.2.2013 | EN | Official Journal of the European Union | C 32/5 |
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2.2.2013

EN

Official Journal of the European Union

C 32/5

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Request for a preliminary ruling from the Bundesarbeitsgericht (Deutschland) lodged on 19 November 2012 — Tevfik Isbir v DB Services GmbH

(Case C-522/12)

2013/C 32/06

Language of the case: German

Referring court

Referring court

Bundesarbeitsgericht

Parties to the main proceedings

Parties to the main proceedings

Applicant: Tevfik Isbir

Applicant:

Defendant: DB Services GmbH

Defendant:

Questions referred

Questions referred

| 1. | Is the expression ‘minimum rates of pay’ in Article 3(1), first subparagraph, point (c) of Directive 96/71/EC (1) to be interpreted as referring to the consideration of the employer for the work done by the worker which should be discharged according to the law, regulation or administrative provision or the universally applicable collective agreement referred to in the opening sentence of Article 3(1) of the directive only and exclusively by the collective minimum wage (‘usual work’), meaning that it is only those employer payments which reward that usual work and which must be available to the worker at the latest on the date when they are payable within the respective wage payment period which can be counted towards the fulfilment of the obligation to pay the minimum rate of pay? |
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1.

Is the expression ‘minimum rates of pay’ in Article 3(1), first subparagraph, point (c) of Directive 96/71/EC (1) to be interpreted as referring to the consideration of the employer for the work done by the worker which should be discharged according to the law, regulation or administrative provision or the universally applicable collective agreement referred to in the opening sentence of Article 3(1) of the directive only and exclusively by the collective minimum wage (‘usual work’), meaning that it is only those employer payments which reward that usual work and which must be available to the worker at the latest on the date when they are payable within the respective wage payment period which can be counted towards the fulfilment of the obligation to pay the minimum rate of pay?

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| 2. | Is the expression ‘minimum rates of pay’ in Article 3(1), first subparagraph, point (c) of Directive 96/71/EC to be interpreted as precluding national provisions or practices according to which payments by an employer are not be to regarded as part of the minimum wage and therefore cannot be counted towards fulfilment of the entitlement to the minimum wage, if the employer makes those payments on the basis of a collective agreement-based obligation,






  — | and the payments, according to the intention of the parties to the collective agreement and of the legislature, have capital-generating objectives for the workers, |
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2.

Is the expression ‘minimum rates of pay’ in Article 3(1), first subparagraph, point (c) of Directive 96/71/EC to be interpreted as precluding national provisions or practices according to which payments by an employer are not be to regarded as part of the minimum wage and therefore cannot be counted towards fulfilment of the entitlement to the minimum wage, if the employer makes those payments on the basis of a collective agreement-based obligation,

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and the payments, according to the intention of the parties to the collective agreement and of the legislature, have capital-generating objectives for the workers,

and to that end,

| — | the monthly payments by the employer to the employee are for long-term purposes such as contributions towards savings, the construction or acquisition of a residence or capital life insurance, and |
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the monthly payments by the employer to the employee are for long-term purposes such as contributions towards savings, the construction or acquisition of a residence or capital life insurance, and

| — | are subsidised by allowances and tax breaks from the State, and |
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are subsidised by allowances and tax breaks from the State, and

| — | the worker is entitled to access those contributions only after several years have elapsed, and |
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the worker is entitled to access those contributions only after several years have elapsed, and

| — | the level of the contributions in the form of a fixed monthly sum is dependent only on the agreed working time and not on the salary paid (‘capital-generating contributions’)? |
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the level of the contributions in the form of a fixed monthly sum is dependent only on the agreed working time and not on the salary paid (‘capital-generating contributions’)?

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(1)  Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services (OJ 1997 L 18, p. 1)

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