Case C-196/02: Reference for a preliminary ruling by the Irinodikio Athinon by judgment of that court of 13 May 2002 in the case of Vasiliki Nikoloudi against Organismos Tilepikinonion Elladas (OTE)
Date: 2002-07-13
Institutions: Court of Justice
Subjects: collective agreement, interpretation of the law, semi-skilled worker, sexual discrimination, work contract

C 169/26

EN

Official Journal of the European Communities

13.7.2002

(b)

incorrectly or incompletely transposing into Austri-
an law the obligation imposed on the competent
authorities by Article 13 of the directive to undertake
appropriate periodic inspections of establishments
and undertakings which carry out the operations
referred to in Articles 9 to 12 of the directive, the
Republic of Austria has failed to fulfil its obligations
under Article 1(e) and (f) of the directive in conjunc-
tion with Annexes II A and II B thereto and
Article 13 of the directive;

2.

order the Republic of Austria to pay the costs.

Pleas in law and main arguments

‘disposal’ and ‘recovery’

The definitions of
laid down in
Article 1(e) and (f) in conjunction with Annexes II A and II B
of Directive 75/442/EEC are of central
importance to the
uniform terminology of Community waste law and the
realisation of European waste policy. Under the legal pro-
visions in force in the Republic of Austria,
terminology
inconsistent with that used in the directive is employed for the
classification of operations which are regulated in Community
law by the definitions of ‘disposal’ and ‘recovery’.

In addition, the provisions in the Gewerbeordnung 1994 (the
Austrian Trade Code of 1994) relating to industrial plants do
not adequately meet the requirements of Article 13 of the
directive, because those provisions do not provide that the
inspection must be carried out by the competent authorities.

(a)

not transposing into Austrian law the obligation to
separate waste laid down in Article 2(4) of Council
Directive 91/689/EEC(1) of 12 December 1991 on
hazardous waste, as amended (2), and

(b) not fully transposing the obligation on the auth-
orities to carry out appropriate periodic inspections
of producers of hazardous waste laid down in
Article 4(1) of the directive, or the obligation on the
authorities to carry out inspections laid down in
Article 5(2), the Republic of Austria has failed to
fulfil its obligations under Articles 2(4), 4(1) and
5(2) of the directive;

2.

order the Republic of Austria to pay the costs.

Pleas in law and main arguments

There is no provision of Austrian law which clearly transposes
the duty to separate mixed waste imposed by Article 2(4) of
the directive.

In addition, the duty to carry out inspections prescribed by
Austrian law relates only to those entities which collect and
handle hazardous waste, but does not extend to producers of
hazardous waste, as required by Directive 91/689/EEC. There
is also no comprehensive obligation on the competent auth-
orities to carry out appropriate periodic inspections of estab-
lishments and undertakings as required by Article 5(2) of the
directive.

(1) OJ L 377, 31.12.1991, p. 20.
(2) Council Directive 94/31/EC of 27 June 1994, OJ L 168, 2.7.1994,

p. 28.

Action brought on 24 May 2002 by the Commission
of the European Communities against the Republic of
Austria

(Case C-194/02)

(2002/C 169/46)

An action against the Republic of Austria was brought before
the Court of Justice of the European Communities on 24 May
2002 by the Commission of the European Communities,
represented by Josef Christian Schieferer, of its Legal Service,
with an address for service in Luxembourg at the office of Luis
Escobar Guerrero, of its Legal Service, at Wagner Centre C 254,
Kirchberg, Luxembourg.

The applicant claims that the Court should:

1.

declare that by:

Reference for a preliminary ruling by the Irinodikio
Athinon by judgment of that court of 13 May 2002 in the
case of Vasiliki Nikoloudi against Organismos Tilepiki-
nonion Elladas (OTE)

(Case C-196/02)

(2002/C 169/47)

Reference has been made to the Court of Justice of the
European Communities by judgment of the Irinodikio Athinon
(Small Claims Court, Athens) of 13 May 2002, received at the
Court Registry on 27 May 2002, for a preliminary ruling in the
case of Vasiliki Nikoloudi against Organismos Tilepikinonion
Elladas (OTE) on the following questions:

1. Are the existence and operation of a rule, such as, in
the present case, Article 24a(2a) of the General Staff
Regulations of the Organismos Tilepikinonion Elladas
(OTE), under which it is laid down that (only) women
are taken on as cleaners on employment contracts of
indefinite duration for part-time or intermittent employ-
ment, consistent with the requirements which arise from
Article 119 of the EEC Treaty and Directives 117/75 and
207/76?

13.7.2002

EN

Official Journal of the European Communities

C 169/27

Under the case-law of the Court of Justice, given that
reduced working hours are tied to reduced pay can the
rule at issue be interpreted as automatically constituting
direct discrimination on grounds of sex, since it immedi-
ately and directly ties part-time employment to the sex of
the (female) employees and thus places only women at a
disadvantage?

2. Does the exclusion of

temporary part-time cleaners
employed for an indefinite duration from the benefits of
the specific collective agreement of 2 November 1987
between OTE and the Omospondia Ergazomenon OTE
(OTE Workers’ Federation) with regard to their incorpor-
ation within the regular staff (and indeed irrespective of
the duration of the part-time employment contract), as in
the present case, on the ground that that specific collective
agreement required at least two years’ full-time service
infringe Article 119 of the EEC Treaty and the abovemen-
tioned directives or another rule of Community law,
as indirect discrimination on grounds of sex, on the
assumption that those rules (notwithstanding their osten-
sibly neutral character since no link is made to the
employees’ sex) excepted exclusively female cleaners,
because no men worked part-time under a contract of
indefinite duration either in the General Services Sector
(to which cleaners belong) or in any other OTE staff
sector?

3. When applying the specific collective agreement of
10 May 1991 between OTE and the OTE Workers’
Federation, OTE required temporary staff who were to
become (probationary) members of the regular staff to
have a contract of indefinite duration and to be employed
full-time.

Does the exclusion of part-time cleaners (irrespective of
the duration of their contract), as in the present case,
constitute impermissible,
indirect discrimination on
grounds of sex falling within provisions of Community
law (Article 119 and Directives 75/117 and 76/207),
given that the specific collective agreement excepted
exclusively female cleaners because no men worked part-
time for an indefinite duration in any OTE staff sector?

4. Under Article 5(9) of

the General Staff Regulations
of OTE, as in force until 1 January 1996, part-time
employment was not included at all when calculating
length of service for the purpose of determining better
conditions of pay. Thereafter, from 1 January 1996, that
provision was amended by a specific collective agreement
and it was laid down that part-time employment is
regarded as equivalent to half of an equal period of full-
time employment.

On the basis that part-time employment exclusively or
mainly affected women, can the provisions under which
part-time employment is entirely excluded (until 1 Janu-
ary 1996) or taken into account in proportion to full-
time employment (from 1 January 1996) be interpreted,
in the light also of the case-law of the Court of Justice, as
introducing indirect discrimination on grounds of sex
prohibited under the rules of Community law and,
consequently, should the entire period of part-time
employment be added to their length of service?

5.

If the Court of Justice answers Questions 1 to 4 in the
affirmative,
in the sense that the contested rules and
provisions of collective agreements in fact contravene
Community law, who bears the burden of proof when
employees plead that the principle of equal treatment has
been infringed to their detriment?

Action brought on 4 June 2002 by the Commission of the
European Communities against the Republic of Austria

(Case C-209/02)

(2002/C 169/48)

An action against the Republic of Austria was brought before
the Court of Justice of the European Communities on 4 June
2002 by the Commission of the European Communities,
represented by Josef Christian Schieferer, of its Legal Service,
with an address for service in Luxembourg at the office of Luis
Escobar Guerrero, of its Legal Service, Wagner Centre C 254,
Kirchberg.

The applicant claims that the Court should:

(a)

declare that, as a result of the fact that the proposed
extension of
the golf course in the municipality of
Wörschach in Styria has been approved despite the
negative results of the assessment of its impact on the
natural habitat of the corncrake (Crex crex) in the special
protection area established there pursuant to Article 4 of
Directive 79/409/EEC (1), the Republic of Austria has
failed to comply with its obligations under Article 6(3)
and (4) in conjunction with Article 7 of Council Directive
92/43/EEC of 21 May 1992 on the conservation of
natural habitats and of wild fauna and flora (2);

(b) order the Republic of Austria to pay the costs.