Case C-320/01: Reference for a preliminary ruling by the Arbeitsgericht Lübeck by order of that court of 6 August 2001 in the case of Wiebke Busch against Klinikum Neustadt GmbH & Co Betriebs-KG
Date: 2001-10-27
Institutions: Court of Justice
Subjects: interpretation of the law, motherhood, parental leave, sexual discrimination

C 303/10

EN

Official Journal of the European Communities

27.10.2001

Reference for a preliminary ruling by the Arbeitsgericht
Lübeck by order of that court of 6 August 2001 in the
case of Wiebke Busch against Klinikum Neustadt GmbH
& Co Betriebs-KG

(Case C-320/01)

(2001/C 303/16)

Reference has been made to the Court of Justice of the
European Communities by order of the Arbeitsgericht (Labour
Court) of 6 August 2001 which was received at the Court
Registry on 20 August 2001, for a preliminary ruling in the
case of Wiebke Busch against Klinikum Neustadt GmbH & Co.
Betriebs-KG on the following questions:

1. Does it constitute illegal discrimination on grounds of
sex, within the meaning of Article 2(1) of Council
Directive 76/207/EEC (1), if a woman who, after she has
started her parenting leave (Erziehungsurlaub) whishes to
shorten that leave with the consent of her employer, is
under an obligation to inform the employer if she knows
she is pregnant again before the agreement to shorten her
leave is concluded, where she cannot
fully assume
the proposed work because from the very first day a
prohibition of employment applies in respect of particular
tasks?

2.

If the answer to Question 1 is answered in the affirmative:
In the case described, does it constitute unlawful discrimi-
nation on the grounds of sex, within the meaning of the
said Directive,
if the employer then has the right to
rescind his consent to the shortening of parenting leave
because he was mistaken about the fact that the woman
was pregnant?

(1) OJ L 39 of 14.2.1976, p. 40.

Appeal brought on 21 August 2001 (fax: 20.8.2001) by
AGRANA Zucker und Stärke Aktiengesellschaft against
the judgment delivered on 7 June 2001 by the Fifth
Chamber (Extended Composition) of the Court of First
Instance of the European Communities in Case T-187/99
between AGRANA Zucker und Stärke Aktiengesellschaft
and the Commission of the European Communities

(Case C-321/01 P)

(2001/C 303/17)

the Commission of the European Communities was brought
before the Court of Justice of the European Communities on
21 August 2001 (fax: 20.8.2001) by AGRANA Zucker und
Stärke Aktiengesellschaft, represented by Walter Barfuß and
Hanno Wollmann, Rechtsanwälte, of Messrs Schönherr Barfuß
Torggler & Partner, of Tuchlauben 13, A-1014 Vienna, with
an address for service in Luxembourg at the Chambers of
Arendt & Medernach, 8-10 Rue Mathias Hardt, L-2010
Luxembourg.

The appellant claims that the Court should:

(1)

set aside the whole of the contested judgment (1) and
annul Commission Decision 1999/342/EC of 30 Septem-
ber 1998 concerning aid which Austria plans to grant
to Agrana Stärke GmbH to build and convert starch
production facilities (OJ 1999 L 131, p. 61), and,
if
appropriate, refer the case, after setting aside the contested
judgment, back to the Court of First Instance;

(2) order the Commission to pay the costs of the proceedings
before the Court of First Instance and of the appeal
proceedings.

Pleas in law and main arguments

The Court of First Instance failed in the contested judgment
to state which obligations are imposed on the European
Commission by Declaration No 31 set out in the Final Act of
the 1995 Act of Accession (Joint Declaration on the processing
industry in Austria and Finland). It is apparent simply from an
interpretation of the literal wording of Declaration No 31 that
the respondent in the present case was obliged to apply
Article 87(3)(c) EC not (as usual) in a narrow way but broadly
(‘flexibly’). The respondent and the Court of First Instance
failed to meet that requirement, inasmuch as they attributed to
an aid measure recognised as being only small-scale an effect
prejudicial to the Community. Had a flexible interpretation
been applied to the rules of the Treaty relating to aid, the
measure should have been approved.

In addition, the respondent and the Court of First Instance
wrongly applied Declaration No 31, inasmuch as they declined
to include in their calculations, first, the advantage accruing to
the Community from the non-transitional accession of Austria
and, second, the interest of Austria in the restructuring of
its processing industry.
It is apparent from a teleological
interpretation, of Declaration No 31 that the Commission is
obliged, when assessing individual aid projects assisting the
absorption of the Austrian processing industry into the internal
market, to take those factors into account. By declaring that
there was no obligation to weigh up the various interests
involved, the Court of First Instance (like the Commission
before it) has infringed Community law.

An appeal against the judgment delivered on 7 June 2001 by
the Fifth Chamber (Extended Composition) of the Court of
First Instance of the European Communities in Case T-187/99
between AGRANA Zucker und Stärke Aktiengesellschaft and

(1) OJ C 314 of 30.10.1999, p. 10.