Case C-209/02: Action brought on 4 June 2002 by the Commission of the European Communities against the Republic of Austria
Date: 2002-07-13
Institutions: Court of Justice
Subjects: Austria, European Commission, action for failure to fulfil an obligation, environmental protection, protected area, protection of animal life, tourist infrastructure, wildlife

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.

C 169/28

EN

Official Journal of the European Communities

13.7.2002

Pleas in law and main arguments

43/EEC were fulfilled. However, that possibility was not in any
way taken into account by the competent authority.

In the context of the procedure for the approval of the planned
extension to the golf course in the municipality of Wörschach
im Ennstal,
the Styrian authority responsible for nature
protection carried out an appraisal of the compatibility of that
project with the conservation objectives laid down for that
area. In the Commission’s view, the expert’s report carried out
by the Institute may be regarded as an assessment of the
implications for the site within the meaning of Article 6(3) of
Council Directive 92/43/EEC on the conservation of natural
habitats and of wild fauna and flora. The project in question
gave rise to a potentially grave risk to the only instance, within
the inner Alpine region, of the breeding of the corncrake, a
species of bird threatened with extinction worldwide, within
the special protection area located in the Ennstal in accordance
with Article 4 of Council Directive 79/409/EEC on the
conservation of wild birds. On the basis of the results of the
assessment made of the implications for the site, the project
should not have been approved pursuant to Article 6(3) of
Directive 92/43/EEC. Thus, it was capable of being approved
only if the criteria laid down by Article 6(4) of Directive 92/

(1) OJ 1979 L 103, p. 1.
(2) OJ 1992 L 206, p. 7.

Removal from the register of Case C-479/01 (1)

(2002/C 169/49)

By order of 17 April 2002 the President of the Court of Justice
of the European Communities ordered the removal from the
register of Case C-479/01: Commission of the European
Communities v Kingdom of Belgium.

(1) OJ C 84 of 6.4.2002.