# C_2013032EN.01000201.xml

| 2.2.2013 | EN | Official Journal of the European Union | C 32/2 |
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2.2.2013

EN

Official Journal of the European Union

C 32/2

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Reference for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 24 October 2012 — Österreichischer Gewerkschaftsbund v Verband Österreichischer Banken und Bankiers

(Case C-476/12)

2013/C 32/02

Language of the case: German

Referring court

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Parties to the main proceedings

Applicant: Österreichischer Gewerkschaftsbund

Applicant:

Defendants: Verband Österreichischer Banken und Bankiers

Defendants:

Questions referred

Questions referred

| 1. | Is the principle of pro rata temporis under Clause 4.2 of the Framework Agreement annexed to Council Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time work (1), to be applied to a child allowance provided for in a collective agreement — such allowance being a social benefit provided by the employer in order to meet part of the parents’ expenses for the maintenance of the child in respect of whom the allowance is obtained — on the basis of the (appropriate) nature of that benefit? |
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1.

Is the principle of pro rata temporis under Clause 4.2 of the Framework Agreement annexed to Council Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time work (1), to be applied to a child allowance provided for in a collective agreement — such allowance being a social benefit provided by the employer in order to meet part of the parents’ expenses for the maintenance of the child in respect of whom the allowance is obtained — on the basis of the (appropriate) nature of that benefit?

pro rata temporis

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| 2. | If Question 1 is answered in the negative:
  Is Clause 4.1 of the Framework Agreement annexed to Council Directive 97/81/EC to be interpreted as meaning that unequal treatment of part-time workers, by means of a proportionate reduction in their entitlement to child allowance according to working time, is — having regard to the social partners’ wide discretion in the determination of a particular social and economic policy objective and of the measures capable of achieving it — objectively justified on the basis that a prohibition of a proportionate grant:






  (a) | makes part-time work in the form of parental part-time working (Elternteilzeit) and/or minor activity during a period of parental leave (Elternkarenzurlaub) more difficult or impossible; and/or |
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2.

If Question 1 is answered in the negative:

Is Clause 4.1 of the Framework Agreement annexed to Council Directive 97/81/EC to be interpreted as meaning that unequal treatment of part-time workers, by means of a proportionate reduction in their entitlement to child allowance according to working time, is — having regard to the social partners’ wide discretion in the determination of a particular social and economic policy objective and of the measures capable of achieving it — objectively justified on the basis that a prohibition of a proportionate grant:

(a)

makes part-time work in the form of parental part-time working (Elternteilzeit) and/or minor activity during a period of parental leave (Elternkarenzurlaub) more difficult or impossible; and/or

Elternteilzeit

Elternkarenzurlaub

| (b) | leads to distortion of competition on account of the greater financial burden placed on employers who employ a larger number of part-time workers, and to a lesser willingness on the part of employers to take on part-time workers; and/or |
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(b)

leads to distortion of competition on account of the greater financial burden placed on employers who employ a larger number of part-time workers, and to a lesser willingness on the part of employers to take on part-time workers; and/or

| (c) | leads to more favourable treatment of part-time workers who have additional part-time work and multiple entitlement to a benefit — such as child allowance — under a collective agreement; and/or |
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(c)

leads to more favourable treatment of part-time workers who have additional part-time work and multiple entitlement to a benefit — such as child allowance — under a collective agreement; and/or

| (d) | leads to more favourable treatment of part-time workers, because they have more free time than full-time workers and thus have better childcare options available to them? |
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(d)

leads to more favourable treatment of part-time workers, because they have more free time than full-time workers and thus have better childcare options available to them?

| 3. | If Questions 1 and 2 are answered in the negative: is Article 28 of the Charter of Fundamental Rights to be interpreted as meaning that where, in a system of employment law in which substantial elements of minimum employment standards are established in accordance with the agreed social policy assessments of specially selected and qualified parties to a collective agreement, a point of detail in a collective agreement (albeit a point that breaches the European Union law principle of non-discrimination) — in this case, the proportionate grant of child allowance in the case of part-time working — is invalid (according to national practice), the penalty of invalidity extends to all the provisions of the collective agreement relating to that area (in this case, child allowance)? |
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3.

If Questions 1 and 2 are answered in the negative: is Article 28 of the Charter of Fundamental Rights to be interpreted as meaning that where, in a system of employment law in which substantial elements of minimum employment standards are established in accordance with the agreed social policy assessments of specially selected and qualified parties to a collective agreement, a point of detail in a collective agreement (albeit a point that breaches the European Union law principle of non-discrimination) — in this case, the proportionate grant of child allowance in the case of part-time working — is invalid (according to national practice), the penalty of invalidity extends to all the provisions of the collective agreement relating to that area (in this case, child allowance)?

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(1)  OJ 1998 L 14, p. 9, as amended by Directive 98/23/EC (OJ 1998 L 131, p. 10)

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