Case C-4/02: Reference for a preliminary ruling by the Verwaltungsgericht Frankfurt am Main by order of 12 November 2001 in the case of Hilde Schönheit against the City of Frankfurt am Main
Date: 2002-05-04
Institutions: Court of Justice
Subjects: European social policy, equal treatment, interpretation of the law, pension scheme, sexual discrimination

C 109/18

EN

Official Journal of the European Communities

4.5.2002

Appeal brought on 6 June 2001 by G. Ojha against the
judgment delivered on 6 arch 2001 by the First Chamber
of the Court of First Instance of the European Communi-
ties in Case T-77/99 Ojha v Commission of the European
Communities

Reference for a preliminary ruling by the Landesgericht
für Zivilrechtsachen Vienna by order of that court of
12 October 2001 in the case of Prof. Monika Herbstrith v
Republic of Austria

(Case C-284/01 P)

(2002/C 109/29)

(Case C-430/01)

(2002/C 109/31)

An appeal against the judgment delivered on 6 March 2001
by the First Chamber of the Court of First Instance of the
European Communities in Case T-77/99 (1)Ojha v Commission
of the European Communities was brought before the Court
of Justice of the European Communities on 6 June 2001 by
G. Ojha. By order of 22 November 2001 the Court of Justice
(First Chamber) dismissed the appeal and ordered Mr Ojha to
bear his own costs.

(1) OJ C 161 of 2.6.2002, p. 16.

Appeal brought on 23 July 2001 by Smanor SA and
Monique and Hubert Ségaud against the order made on
4 July 2001 by the First Chamber of the Court of First
Instance of the European Communities in Case T-123/01
between the parties bringing the present appeal and the
Commission of the European Communities

(Case C-291/01 P)

(2002/C 109/30)

An appeal against the order made on 4 July 2001 by the First
Chamber of the Court of First Instance of the European
Communities in Case T-123/01 between the parties bringing
the present appeal and the Commission of the European
Communities was brought before the Court of Justice of the
European Communities on 23 July 2001 by Smanor SA and
Monique and Hubert Ségaud. By order of 22 November 2001
the Court of Justice (First Chamber) dismissed the appeal and
ordered each of the applicants to bear their own costs.

Reference has been made to the Court of Justice of the
European Communities by order of the Landesgericht für
Zivilrechtssachen Wien (Vienna Higher Civil Court) of
12 October 2001 which was received at the Court Registry on
6 November 2001, for a preliminary ruling in the case of Prof.
Monika Herbstrith v Republic of Austria on the following
questions:

1. Did the conduct described above, viz. the failure to
appoint a candidate despite her professional qualifi-
cations, infringe a provision of directly applicable Com-
munity law and if so, which provision?

2.

If the answer to question 1 is in the affirmative:

Does the infringed provision of directly applicable Com-
munity law give the plaintiff in the original proceedings a
legal right?

3.

If the answer to question 2 is in the affirmative:

Does the request for a preliminary ruling provide the
European Court of Justice with all the information it needs
to determine whether in the circumstances described as
to the original proceedings the national body clearly and
significantly exceeded its discretionary powers, or does it
leave it to the Austrian court requesting the preliminary
ruling to answer this question?

Reference for a preliminary ruling by the Verwaltungsge-
richt Frankfurt am Main by order of 12 November 2001
in the case of Hilde Schönheit against the City of Frankfurt
am Main

(Case C-4/02)

(2002/C 109/32)

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 9 January 2002, for a
preliminary ruling in the case of Hilde Schönheit against the
City of Frankfurt am Main on the following questions:

4.5.2002

EN

Official Journal of the European Communities

C 109/19

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?

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?

4.

5.

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-
sion acquired without account being taken of
the
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?

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
law and in a proper case use them to justify a
of
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?

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?

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?