Judgment of the Court (First Chamber) of 28 June 2001 in Case C-118/00 (reference for a preliminary ruling from the Cour du travail de Mons): Gervais Larsy v Institut national d'assurances sociales pour travailleurs indépendants (Inasti) (Regulations (EEC) Nos 1408/71 and 1248/92 — Retirement pensions — Anti-overlapping rules — Unenforceability pursuant to a judgment of the Court of Justice — Limitation of effects — Serious breach of Community law)
Date: 2001-08-11
Institutions: Court of Justice
Subjects: Belgium, cumulative pension entitlement, interpretation of the law, self-employed person, social security

C 227/4

EN

Official Journal of the European Communities

11.8.2001

by the employer in respect of their employment, constitutes pay
within the scope of Article 119 of the EC Treaty and the
Directive; equal pay must be ensured not only on the basis of
an overall assessment of all
the consideration granted to
employees but also in the light of each aspect of pay taken in
isolation;

JUDGMENT OF THE COURT

(First Chamber)

of 28 June 2001

— the fact that a female employee who claims to be the victim of
discrimination on grounds of sex and the male comparator are
classified in the same job category under the collective agreement
for
governing their employment
concluding that the two employees concerned are performing
the same work or work to which equal value is attributed within
the meaning of Article 119 of the EC Treaty and Article 1 of
the Directive, since this fact is only one indication amongst
others that this criterion is met;

in itself sufficient

is not

— as a general rule, it is for employees who consider themselves to
be the victims of discrimination to prove that they are receiving
lower pay than paid by the employer to a colleague of the other
sex and that they are in fact performing the same work or work
of equal value, comparable to that performed by the chosen
comparator; the employer may then not only dispute the fact
that the conditions for the application of the principle of equal
pay for men and women are met in the case but also put
forward objective grounds, unrelated to any discrimination
based on sex, to justify the difference in pay;

— a difference in pay is capable of being justified by circumstances
not taken into consideration under the collective agreement
application to the employees concerned, provided that they
constitute objective reasons unrelated to any discrimination
based on sex and in conformity with the principle of pro-
portionality;

— in the case of work paid at time rates, a difference in pay
awarded, at the time of their appointment, to two employees of
different sex for the same job or work of equal value cannot be
justified by factors which become known only after the employees
concerned take up their duties and which can be assessed only
once the employment contract is being performed, such as a
difference in the individual work capacity of
the persons
concerned or in the effectiveness of the work of a specific
employee compared with that of a colleague.

(1) OJ C 6 of 8.1.2000.

in Case C-118/00 (reference for a preliminary ruling from
the Cour du travail de Mons): Gervais Larsy v Institut
national d’assurances sociales pour travailleurs indépen-
dants (Inasti) (1)

(Regulations (EEC) Nos 1408/71 and 1248/92 — Retire-
ment pensions — Anti-overlapping rules — Unenforceability
pursuant to a judgment of the Court of Justice — Limitation
of effects — Serious breach of Community law)

(2001/C 227/06)

(Language of the case: French)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-118/00: reference to the Court under Article 177 of
the EC Treaty (now Article 234 EC) from the Cour du travail
de Mons (Labour Court, Mons) Belgium for a preliminary
ruling in the proceedings pending before that court between
Gervais Larsy and Institut national d’assurances sociales pour
travailleurs indépendants (Inasti) — on the interpretation of
Article 95a of Regulation (EEC) No 1408/71 of the Council of
14 June 1971 on the application of social security schemes to
employed persons, to self-employed persons and to members
of their families moving within the Community, as amended
and updated by Council Regulation (EEC) No 2001/83 of
2 June 1983 (OJ L 230, p. 6), as amended by Council
Regulation (EEC) No 1248/92 of 30 April 1992 (OJ 1992
L 136, p. 7), and on the conditions governing a Member State’s
liability for damage caused to individuals by breaches of
Community law — the Court (First Chamber), composed of:
M. Wathelet, President of the Chamber, P. Jann (Rapporteur)
and L. Sevo´ n, Judges; P. Léger; Advocate General; H. von
Holstein, Deputy Registrar, for the Registrar, has given a
judgment on 28 June 2001, in which it has ruled:

1. Article 95a(4), (5) and (6) of Regulation (EEC) No 1408/71
of the Council of 14 June 1971 on the application of social
security schemes to employed persons, to self-employed persons
and to members of their families moving within the Community
as amended and updated by Council Regulation (EEC)
No 2001/83 of 2 June 1983, as amended by Council
Regulation (EEC) No 1248/92 of 30 April 1992, does not
apply to an application for review of a retirement pension, the
amount of which has been limited under an anti-overlapping
rule applicable in a Member State, on the ground that the
person receiving that pension has also been awarded a retirement
pension paid by the competent institution of another Member
State, where the application for review is based on provisions
other than those in Regulation No 1248/92.

11.8.2001

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Official Journal of the European Communities

C 227/5

2.

the review to the detriment of

The application by the competent institution of a Member State
of Article 95a(4), (5) and (6) of Regulation No 1408/71 to
a request for review of a retirement pension, thus limiting the
retroactivity of
the person
concerned, constitutes a serious breach of Community law if
those provisions are not applicable to the application in question
and if it follows from a judgment delivered by the Court of
Justice before the decision by the competent institution that the
institution wrongly applied and anti-overlapping rule of that
Member State, and where it cannot be inferred from that
judgment that the retroactive effect of such a review could be
limited.

1. Declares that by not implementing within the prescribed period
the laws, regulations and administrative measures necessary to
comply with Directive 97/36/EC of the European Parliament
and of
the Council of 30 June 1997 amending Council
Directive 89/552/EEC on the coordination of certain provisions
laid down by law, regulation or administrative action in
Member States concerning the pursuit of television broadcasting
activities, the Grand Duchy of Luxembourg has failed to fulfil
its obligations under that directive;

2. Orders the Grand Duchy of Luxembourg to pay the costs.

(1) OJ C 163 of 10.6.2000.

(1) OJ C 163 of 10.6.2000.

JUDGMENT OF THE COURT

(Fourth Chamber)

of 21 June 2001

in Case C-119/00: Commission of the European Communi-
ties v Grand Duchy of Luxembourg (1)

(Failure by a Member State to fulfil its obligations —
Failure to implement Directive 97/36/EC amending Directive
89/552/EEC — Coordination of certain provisions laid down
by law, regulation or administrative action in Member States
concerning the pursuit of television broadcasting activities)

(2001/C 227/07)

(Language of the case: French)

JUDGMENT OF THE COURT

(Sixth Chamber)

of 3 July 2001

in Case C-378/98: Commission of the European Communi-
ties v Kingdom of Belgium (1)

(Failure by a Member State to fulfil its obligations — State
aid — Article 93(2), second subparagraph, of the EC Treaty
(now Article 88(2), second subparagraph, EC) — Obligation
to recover aid granted under the Maribel bis and Maribel ter
schemes — Impossible to put into effect)

(2001/C 227/08)

(Language of the case: French)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-119/00: Commission of the European Communities
(Agent: K. Banks) v Grand Duchy of Luxembourg (Agent:
P. Steinmetz) — application for a declaration that, by failing
to adopt the laws, regulations and administrative provisions
necessary to comply with Directive 97/36/EC of the European
Parliament and of the Council of 30 June 1997 amending
Council Directive 89/552/EEC on the coordination of certain
provisions laid down by law, regulation or administrative
action in Member States concerning the pursuit of television
broadcasting activities (OJ 1997 L 202, p. 60), and/or by
failing to inform the Commission thereof, the Grand Duchy of
Luxembourg has failed to fulfil
its obligations under that
directive — the Court (Fourth Chamber), composed of: A. La
Pergola, President of the Chamber, D.A.O. Eward (Rapporteur)
and S. von Bahr, Judges; L.A. Geelhoed, Advocate General;
R. Grass, Registrar, has given a judgment on 21 June 2001, in
which it:

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-378/98: Commission of the European Communities
(Agent: G. Rozet) v Kingdom of Belgium (Agent: A. Snoecx,
assisted by G. van Gerven and K. Coppenholle) — application
for a declaration that, by failing to adopt within the periods
prescribed for under the Maribel bis/ter scheme which was
declared unlawful and incompatible with the common market
by Commission Decision 97/239/EC of 4 December 1996
concerning aid granted by Belgium under the Maribel bis/ter
scheme (OJ 1997 L 95, p. 25), notified to it on 20 December
1996, the Kingdom of Belgium has failed to fulfil its obligations
under the fourth paragraph of Article 189 of the EC Treaty
(now the fourth paragraph of Article 249 EC) and Articles 2
and 3 of the said decision — the Court (Sixth Chamber),
composed of: C. Gulmann, President of
the Chamber,
J.-P. Puissochet, R. Schintgen, F. Macken and N. Colneric
(Rapporteur), Judges; A. Tizzano, Advocate General; D. Louter-
man-Hubeau, Head of Division, for the Registrar, has given a
judgment on 3 July 2001, in which it: