Case C-27/02: Reference for a preliminary ruling by the Oberlandesgericht Innsbruck by order of that Court of 14 January 2002 in the case of Petra Engler against Janus Versand Gesellschaft m.b.H.
Date: 2002-05-04
Institutions: Court of Justice
Subjects: Austria, advertising malpractice, consumer protection, contract, interpretation of the law

4.5.2002

EN

Official Journal of the European Communities

C 109/23

as precluding a social plan under which all female employees
aged 50 and over at the time of their dismissal and all male
employees aged 55 and over at the time of their dismissal are
entitled, irrespective of the period of employment, that is to
say with no account being had to any ‘qualification periods’
and solely on the basis of age — or to the fact that the risk of
long-term unemployment for men and for women generally
differs according to their age &mdash, to a ‘bridging allowance’
amounting to 75 % of their final gross monthly salary for five
years, but at most until they become entitled to a statutory
pension?

3.b)
Is this directive to be interpreted as precluding a social
plan under which all female employees aged 50 and over at
the time of their dismissal and all male employees aged 55 and
over at the time of their dismissal are entitled, irrespective of
the period of employment, that is to say with no account
being had to any ‘qualification periods’ and solely on the basis
of age — or to the fact that the risk of long-term unemploy-
ment for men and for women generally differs according to
their age —, to a ‘bridging allowance’ amounting to 75 % of
their final gross monthly salary for five years, but at most until
they become entitled to a statutory pension?

1.b)
In particular, is the concept of pay in Article 141 EC
and Article 1 of the directive to be construed as including, in
the case of benefits which are related not to work performed
but solely to membership of a workforce and the social
obligation on the employer, allowance for the risk of long-
term unemployment so that pay must regarded as equal where
— overall — it covers the same degree of risk even though
this risk normally occurs in different age groups in the case of
men and women?

1.c)
Or can, if the concept of ‘pay’ in these provisions after
all covers only the cash benefit as such, the varying risk thus
construed justify different treatment of men and women?

2.
Is the concept of ‘occupational social security schemes’
within the meaning of Article 2(1) of Council Directive
86/378/EEC of 24 July 1986 on the implementation of
the principle of equal treatment for men and women in
occupational social security schemes (OJ 1986 L 225, p. 40),
as amended by Council Directive 96/97/EC of 20 December
1996 (OJ 1996 L 46, p. 20), to be construed as including
bridging allowances in the above sense?

Is the concept of the risk of ‘old age, including early retirement’
in Article 4 of the directive to be construed as including such
‘bridging allowances’?

Does the concept of ‘scheme’ in Article 6(1)(c) of the directive
cover only the question of fulfilment of the requirements for
entitlement to the bridging allowance or also membership of
the workforce as a whole?

Reference for a preliminary ruling by the Oberlandesge-
richt Innsbruck by order of that Court of 14 January
2002 in the case of Petra Engler against Janus Versand
Gesellschaft m.b.H.

(Case C-27/02)

(2002/C 109/37)

Reference has been made to the Court of Justice of the
European Communities by order of the Oberlandesgericht
(Higher Regional Court)
Innsbruck of 14 January 2002,
received at the Court Registry on 31 January 2002, for a
preliminary ruling in the case of Petra Engler against Janus
Versand Gesellschaft m.b.H. on the following questions:

For the purposes of the Brussels Convention on Jurisdiction
and the Enforcement of Judgments in Civil and Commercial
Matters of 27 September 1968 (‘the Convention’), does the
provision in Paragraph 5j of the Austrian Konsumentenschutz-
gesetz (Consumer Protection Law) (‘KSchG’), BGBl. 1979/140,
in the version of Paragraph 1(2), of the Austrian Fernabsatz-
Gesetz (Distance Selling Law), BGBl. I 1999/185, which entitles
consumers to claim from undertakings in the courts prizes
ostensibly won by them where the undertakings send (or have
sent) them prize notifications or other similar communications
worded so as to give the impression that they have won a
particular prize, also constitute:

Is Council Directive 76/207/EEC of 9 February 1976
3.a)
on the implementation of the principle of equal treatment for
men and women as regards access to employment, vocational
training and promotion, and working conditions (OJ 1976
L 39, p. 40) to be interpreted to the effect that the ‘bridging
allowance’ described above constitutes a condition governing
dismissal within the meaning of Article 5 of this directive?

1.

a contractual claim under Article 13(3); or

2.

a contractual claim under Article 5(1); or

3.

a claim in respect of a tort, delict or quasi-delict under
Article 5(3)

C 109/24

EN

Official Journal of the European Communities

4.5.2002

where on the basis of the documents sent to him a sensible
consumer could have thought that all he had to do to claim
the amount held for him was to return an enclosed payment
notice, so that the payment of the prize did not depend on an
order for and delivery of goods from the undertaking promis-
ing the prize, but where a catalogue and a voucher for a trial
offer without obligation are sent to the consumer with the
prize notification?

3. Are carers within the meaning of Paragraph 19 of
Volume XI of the SGB workers within the meaning of
Article 39 EC? If so, does that preclude denying them the
right to have ‘pension insurance contributions’ paid on
their behalf on the basis that they do not have their
residence or habitual place of stay in the relevant country?

If the first question is answered in the affirmative, there is no
need to answer the other two questions.

(1) OJ, English Special Edition 1971 (II), p. 416.

Reference for a preliminary ruling by the Socialgericht
Aachen by order of 18 January 2002 in the case of Maria
Barth against Landesversicherungsanstalt Rheinprovinz,
additional parties (1) PAX Familienfürsorge Krankenver-
sicherung and (2) Landesamt für Besoldung und Versor-
gung Nordrhein-Westfalen

(Case C-31/02)

(2002/C 109/38)

Reference has been made to the Court of Justice of the
European Communities by order of the Socialgericht Aachen
(Social Court, Aachen) of 18 January 2002, received at the
Court Registry on 4 February 2002, for a preliminary ruling in
the case of Maria Barth against Landesversicherungsanstalt
Rheinprovinz, additonal parties (1) PAX Familienfürsorge
Krankenversicherung and (2) Landesamt für Besoldung und
Versorgung Nordrhein-Westfalen on the following questions:

1. Are the provisions of Regulation EEC No 1408/71 (1) of
the Council of 14 June 1971 on the application of social
security schemes to employed persons and their families
moving within the Community also applicable to the
German care insurance regime if cover for the risk
of becoming reliant on care under Paragraph 23,
in
conjunction with Paragraph 110, of Volume XI of the
Sozialgesetzbuch (German Code of Social Law, herein-
after ‘the SGB’), which relates to Social Care Insurance, is
based in whole or in part on a private care insurance
policy?

2. Do the contributions payable to the statutory pension
insurance scheme by care insurance institutions on behalf
of carers not acting in the course of employment pursuant
to Paragraph 44 of Volume XI of the SGB, in conjunction
with Paragraphs 3(1)(1)(a) and 166(2) of Volume VI of
the SGB, which relates to Statutory Pension Insurance,
constitute ‘sickness benefits’ within the meaning of
Article 4(1)(a) of Regulation No EEC No 1408/71? If so,
may such benefits be payable on behalf of carers who
provide care in the country of the competent institution
but live in a different Member State?

Reference for a preliminary ruling by the Bundesverwal-
tungsgericht by order of that Court of 8 November 2001
in the case of Landeszahnärztekammer Hessen against
Dr Markus Vogel

(Case C-35/02)

(2002/C 109/39)

Reference has been made to the Court of Justice of the
European Communities by order of the Bundesverwaltungsger-
icht (Federal Administrative Court) of 8 November 2001,
received at the Court Registry on 12 February 2002, for a
preliminary ruling in the case of Landeszahnärztekammer
Hessen against Dr Markus Vogel on the following question:

Is
it compatible with Article 1 of Council Directive
78/687/EEC (1) of 25 July 1978 concerning the coordination
of provisions laid down by law, regulation or administrative
action in respect of the activities of dental practitioners (OJ
1978 L 233, p. 10) for national legislation to permit doctors
in general to practise dentistry on a permanent basis without
having the dental
training required by the directive and
certified by an appropriate diploma?

Does the answer to this question turn on whether the activity
is pursued under the title ‘dental practitioner’?

(1) OJ L 233 of 24.8.1978, p. 10.