Case C-5/02: Reference for a preliminary ruling by the Verwaltungsgericht Frankfurt am Main by order of 12 November 2001 in the case of Silvia Becker against Land Hessen
Date: 2002-05-04
Institutions: Court of Justice
Subjects: equal treatment, gender equality, interpretation of the law, social security, social-security benefit

C 109/20

EN

Official Journal of the European Communities

4.5.2002

9.

Is it reasonable for such costs to be taken into account as
a matter of necessity (Q. 8) if the burden of additional
staff-administration costs is imposed solely on earlier
part-time employees, hence predominantly women, even
though the expansion of part-time employment oppor-
tunities at the time of the legislative amendment in that
regard as a matter of priority pursued the objective of
reducing general unemployment by the partial absorption
of surplus male and female applicants to the public
service?

(1) OJ L 225, p. 40.
(2) OJ L 6, p. 24.
(3) OJ L 14, p. 6.

Reference for a preliminary ruling by the Verwaltungsge-
richt Frankfurt am Main by order of 12 November 2001
in the case of Silvia Becker against Land Hessen

(Case C-5/02)

(2002/C 109/33)

Reference has been made to the Court of Justice of the
European Communities by order of the Verwaltungsgericht
(Administrative Court) Frankfurt am Main of 12 November
2001, received at the Court Registry on 10 January 2002, for
a preliminary ruling in the case of Silvia Becker against Land
Hessen on the following questions:

1.

Is the grant of an old-age pension under the provisions
of the German law on pensions for civil servants subject
to Article 119 of the EC Treaty, now superseded by
Article 141(1) and (2) EC, in conjunction with Directive
86/378/EEC (1), or
to the provisions of Directive
79/7/EEC (2)?

2. Do benefits under the law on pensions for civil servants
constitute a scheme under Article 6(1)(h) of Directive
86/378/EEC with the consequence that, irrespective of
financing by budgetary resources, it is legitimate to take
into account actuarial factors or analogous matters in
order to differentiate levels of benefit?

3. Are the matters required to justify the indirect discrimi-
nation on the ground of sex initially established under
Article 2(2) of Directive 97/80/EC (3) applicable in the
case of Article 119 of the EC Treaty (now Article 141(1)
and (2) EC, irrespective of whether a question arises in
judicial proceedings as to relaxation of the burden of
proof or whether that question is of no significance under
the principle applicable to judicial proceedings of official
establishment of facts?

4.

5.

6.

7.

Is an apparently neutral criterion in a legal provision to
be judged as to its necessity solely on the basis of the
motives and grounds for enactment which are apparent
from the legislative process,
in particular where the
existence of such grounds is documented in the procedure
leading to adoption of the legislation and demonstrably
constituted the relevant reason for the enactment?

In so far as regard may in addition (Q.4) also be had to
other legitimate aims of the legislation as justificatory
grounds within the meaning of Article 2(2) of Directive
97/80/EC, or under the case law of the Court of Justice
on the establishment of indirect discrimination on the
ground of sex, can a national court in that connection of
its own motion establish legitimate aims for a provision
of
law and in a proper case use them to justify a
distinguishing criterion, in particular where its reasoning
in that regard is founded on considerations inherent
in the legal system? Can it also do so, where such
considerations are not discernibly reflected in the grounds
for the enactment documented in the course of the
legislative procedure?

Can the discrimination which may initially be established
in regard to calculation of the pensions of older part-time
civil servants as a proportion of final salary be justified in
the nature of a legitimate aim as necessary where that
discrimination is intended, as it were, to offset a minimum
pension acquired during the first ten years of service with
no account being taken of the reduction in working time,
although the benefits of civil servants’ pensions are met
solely from general budgetary resources without any
contribution by female officials? As justification for
necessity, if appropriate on an ancillary basis, can refer-
ence be made to the fact that pension benefits are in the
nature of maintenance support and to their characteristic
as a traditional principle of the professional civil service
under Article 33(5) of the Basic Law (Grundgesetz)?

If such discrimination is deemed to be necessary as
determined under Question 6, can a reduction in the rate
of pension for older female and male officials with
entitlement to benefits far above the minimum pension
in respect of at least 10 reckonable years of service be
still regarded as reasonable (proportionate), if the amount
of such reduction is calculated on a linear basis by
reference not only to the extent of reduced working time
but also to the duration of full-time employment in
relation to that of part-time employment although,
for older female and male civil servants, the possibly
disproportionately favourable grant of a minimum pen-
the
sion acquired without account being taken of
reduction of their working time is no longer possible?
Would it not in this context be (more) reasonable to
abandon the disproportionate reduction in the rate of
pension for lifelong and more senior female and male
officials and instead for there merely to be a proportionate
reduction in the minimum pension?

4.5.2002

EN

Official Journal of the European Communities

C 109/21

8. Where the numbers of budgetary and established posts
remain unchanged, can additional personnel costs
incurred in the recruitment of additional persons by an
expansion of part-time employment, in contrast to the
hitherto predominant full-time employment, justify the
necessity of imposing these costs on part-time employees
by way of a disproportionate reduction in their rate of
pension, as occurred under the second and third clauses
of the first sentence of Paragraph 14(1) of the BeamtenVG
in the version thereof applicable until 31 December
1991?

9.

Is it reasonable for such costs to be taken into account as
a matter of necessity (Q. 8) if the burden of additional
staff-administration costs is imposed solely on earlier
part-time employees, hence predominantly women, even
though the expansion of part-time employment oppor-
tunities at the time of the legislative amendment in that
regard as a matter of priority pursued the objective of
reducing general unemployment by the partial absorption
of surplus male and female applicants to the public
service?

10. Does the Protocol concerning Article 119 of the EC
Treaty as part of the Treaty on European Union of 1992
(OJ 1992 C 191, p. 68) absolutely preclude the detailed
rules for the inclusion of periods of employment prior to
17 May 1990 from being examined under Article 141(1)
and (2) EC (ex Article 119 of the EC Treaty)? Does the
prohibition on such examination also apply where after
17 May 1990 the provisions relevant to the inclusion of
periods of employment completed before the relevant
date of 17 May 1990 have been amended but those
amendments effect only a partial adjustment in line with
the requirements of Article 119 of the EC Treaty and for
certain categories effect no such favourable adjustment?

11.

In determining adherence to the relevant date of 17 May
1990 in the enactment of laws is the date of publication
in the official gazette decisive, or is the matter determined
by the conclusion of deliberations in the legislative bodies
and indeed even if the law requires the assent of the
Federal Government?

(1) OJ 1986 L 225, p. 40.
(2) OJ 1979 L 6, p. 24.
(3) OJ 1997 L 14, p. 6.

Reference for a preliminary ruling by the Hoge Raad der
Nederlanden by judgment of that Court of 21 December
2001 in the case of Holin Groep B.V. c.s. against Staatsse-
cretaris van Financiën

(Case C-7/02)

(2002/C 109/34)

Reference has been made to the Court of Justice of the
the Hoge Raad
European Communities by judgment of
der Nederlanden (Supreme Court of
the Netherlands) of
21 December 2001, received at the Court Registry on 11 Janu-
ary 2002, for a preliminary ruling in the case of Holin Groep
B.V. c.s. against Staatssecretaris van Financiën (State Secretary
for Finance) on the following question:

1. Do Articles 5(7)(a) and 17 of the Sixth Directive (1). or the
European law principles of the protection of legitimate
expectations and of legal certainty preclude — in a case
not involving fraud or abuse or any question of a change
in planned use, as mentioned in paragraphs 50 and 51 of
the judgment of the Court of Justice in Schloßstraße (2)
— the charging of tax on the basis of the abovementioned
Article 5(7)(a) when a taxable person has deducted VAT
which he has paid for goods delivered, or services
provided, to him with a view to the planned leasing,
subject to VAT, of a particular immovable property, on
the simple ground that, as a result of a legislative
amendment, the taxable person no longer has the right
to waive the exemption for that lease?

2. Would an affirmative response to the first question also
apply to a right to deduct arising in the period between
notification of the legislative amendment mentioned in
Question 1 and its entry into force? In other words, in
the event of an affirmative response to Question 1, can
tax still be charged, on the basis of Article 5(7)(a), on the
elements of the cost price referred to in Article 11 A(1)(b)
of the Sixth Directive which were incurred after that
notification date?

(1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the
harmonization of the laws of the Member States relating to
turnover taxes — Common system of value added tax: uniform
basis of assessment (OJ 1977, L 145, p. 1).
(2) Judgement of 8.6.2000 in case C-396/98.