Case C-19/02: Reference for a preliminary ruling by the Oberster Gerichtshof by order of that Court of 20 December 2001 in the case of Dr Viktor Hlozek against Roche Diagnostics Gesellschaft mbH
Date: 2002-05-04
Institutions: Court of Justice
Subjects: approximation of laws, dismissal, equal pay, gender equality, interpretation of the law

C 109/22

EN

Official Journal of the European Communities

4.5.2002

Reference for a preliminary ruling by the Arbejdsret by
order of 25 January 2002 in the case of Danmarks
Rederiforening acting on behalf of DFDS Torline A/S
against LO Landsorganisation i Sverige, acting on behalf
of SEKO Sjöfolk Facket för Service och Kommunikation

seamen on board that vessel can be regarded by the vessel’s
owners as having occurred in the flag State, with the result
that the vessel’s owners can, pursuant to Article 5(3), bring an
action for damages against the trade union in the flag State?

(Case C-18/02)

(2002/C 109/35)

Reference has been made to the Court of Justice of the
European Communities by order of the Arbejdsret (Labour
Court) of 25 January 2002, received at the Court Registry on
29 January 2002, for a preliminary ruling in the case of
Danmarks Rederiforening (Danish Association of Shipping
Companies), acting on behalf of DFDS Torline A/S against
LO Landsorganisation i Sverige (Swedish Congress of Trade
Unions), acting on behalf of SEKO Sjöfolk Facket för Service
och Kommunikation (union representing maritime workers
in service and communications sectors) on the following
questions:

Question 1

a) Must Article 5(3) of the Convention (1) be construed
as covering cases concerning the legality of collective
industrial action for the purpose of securing an agreement
in a case where any harm which may result from the
illegality of such collective action gives rise to liability to
pay compensation under the rules on tort, delict or quasi-
delict, such that a case concerning the legality of notified
collective industrial action can be brought before the
courts of the place where proceedings may be instituted
for compensation in respect of any harm resulting from
that industrial action?

(1) 27 September 1968 on jurisdiction and the enforcement of
judgments in civil and commercial matters (OJ L 204, 1975,
p. 28) modified by the Convention of 26 May 1989 on the
accession of the Kingdom of Spain and the Portuguese Republic
with the adjustments made to them by the Convention on the
accession of the Kingdom of Denmark, of Ireland and of the
United Kingdom of Great Britain and Northern Ireland and the
adjustments made to them by the Convention on the accession of
the Hellenic Republic (OJ L 285, 1989, p. 1).

Reference for a preliminary ruling by the Oberster
Gerichtshof by order of that Court of 20 December 2001
in the case of Dr Viktor Hlozek against Roche Diagnostics
Gesellschaft mbH

(Case C-19/02)

(2002/C 109/36)

b)

Is it necessary, as the case may be, that any harm incurred
the
must be a certain or probable consequence of
industrial action concerned in itself, or is it sufficient that
that industrial action is a necessary condition governing,
and may constitute the basis for, sympathy actions which
will result in harm?

Reference has been made to the Court of Justice of the
European Communities by order of the Oberster Gerichtshof
(Supreme Court) of 20 December 2001, received at the Court
Registry on 29 January 2002, for a preliminary ruling in the
case of Dr Viktor Hlozek against Roche Diagnostics Gesell-
schaft mbH on the following questions:

c) Does it make any difference that implementation of
notified collective industrial action was, after the proceed-
ings had been brought, suspended by the notifying party
until the court’s ruling on the issue of its legality?

1.a)
Are Article 141 EC and Article 1 of Council Directive
75/117/EEC of 10 February 1975 on the approximation of
the laws of the Member States relating to the application of
the principle of equal pay for men and women (OJ 1975 L 45,
p. 19) to be interpreted

Question 2

Must Article 5(3) of the Convention be construed as meaning
that damage resulting from collective industrial action
implemented by a trade union in a country to which a vessel
registered in another country (the flag State) sails for the
purpose of securing an agreement covering the work of

where an employer which dismisses a large group of employees
as a result of a merger with another company is required, on
account of its social obligation towards the entire workforce,
to agree with the works council a social plan, which is binding
in relation to the employees, in order to alleviate the effects of
dismissal, in particular the risk of age-related unemployment,

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)