Case C-220/02: Reference for a preliminary ruling by the Oberster Gerichtshof by order of that Court of 22 May 2002 in the case of Österreichischer Gewerkschaftsbund, Gewerkschaft der Privatangestellten against Wirtschaftskammer Österreich
Date: 2002-08-24
Institutions: Court of Justice
Subjects: equal pay, interpretation of the law, labour law, national service, parental leave

C 202/8

EN

Official Journal of the European Communities

24.8.2002

1)

Is a carer within the meaning of Paragraph 44 of
Volume XI of the Sozialgesetzbuch (German Code of
Social Law) a worker for the purposes of Article 48 EC
and/or Article 1 of Regulation (EEC) No 1408/71 (1)?

If the answer to Question One is no:

2) Where care is provided in the country where the person
reliant on care is insured, does the fact that a carer’s
entitlement to social security cover under Paragraph 44
of Volume XI of the Sozialgesetzbuch is conditional on
his or her being resident in that country, as opposed to
any other Member State, infringe Articles 19, 25 or 28 of
Regulation (EEC) No 1408/71,
following the Court’s
decisions in Cases 150/85 (Drake) (2) and C-160/96
(Molenaar) (3)?

(1) OJ L 149 [1971] of 5.7.1971, p. 2.
(2) [1986] ECR 1995.
(3) [1998] ECR I-843.

Reference for a preliminary ruling by the Oberster
Gerichtshof by order of that Court of 22 May 2002 in the
case of O¨ sterreichischer Gewerkschaftsbund, Gewerk-
schaft der Privatangestellten against Wirtschaftskammer
O¨ sterreich

(Case C-220/02)

(2002/C 202/10)

Reference has been made to the Court of Justice of the
European Communities by order of the Oberster Gerichtshof
(Supreme Court) of 22 May 2002, received at the Court
Registry on 14 June 2002, for a preliminary ruling in the
case of O¨ sterreichischer Gewerkschaftsbund, Gewerkschaft der
Privatangestellten against Wirtschaftskammer O¨ sterreich on
the following questions:

1.

Is the term ‘pay’ in Article 141 EC and in 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 045, p. 19) to be
construed as meaning that it also encompasses statutory
provisions of general application, such as Paragraph 8 of
the Bundesgesetz über die Sicherung des Arbeitsplatzes
für zum Präsenz — oder Ausbildungsdienst einberufene
oder zum Zivildienst zugewiesene Arbeitnehmer (Federal
law on job security for workers called up for military or
training service or assigned to alternative civilian service,
hereinafter ‘the APSG’), where,
in the public interest,
periods of service in the performance of public duties as
defined therein, during which it is generally not possible
to perform services of a private-employment nature, is to
be taken into account for the purposes of claims under
employment law calculated according to length of service
in a private-employment relationship?

2. Are Article 141 EC and Article 1 of Directive 75/117/

EEC to be construed as meaning that,

from the equal pay point of view,

in the case of a system of pay that awards termination
payments to workers essentially based on past loyalty to
their employer and graduated according to the length of
their employment in order to tide them over the actual
termination of that employment, unless the employment
is brought to an end by the worker without good cause,
or if the termination of it is the result of fault on his
part, whereby individual periods of employment are
categorised as independent and the exclusion of periods
of unpaid leave is permitted, if that unpaid leave is taken
for reasons that are in the worker’s interests and at his or
her own instigation and if those reasons do not constitute
a good cause that would entitle the worker to terminate
his or her employment and safeguard his or her termin-
ation payment,

the internal worker group covered by Paragraph 8 APSG
(Group A)

is to be compared with that group of female workers
in accordance with Paragraph 15 of the
who decide,
Mutterschutzgesetz (Law on Maternity Benefits, herein-
after ‘the MSchG’), to take parental leave (‘childcare leave’)
to care for their children without pay after their normal
16-week period of ‘maternity leave’ has expired and until,
at the maximum, the child reaches its second birthday
(Group B)?

3. Are Article 141 EC and Article 1 of Directive 75/
117/EEC to be construed as meaning that, where the
differences between the internal worker groups referred
to in Question 2 principally consist of the fact that, in the
case of

Group A, ‘men on military service’,

1.

2.

3.

there is normally an obligation to ‘report for duty’
or, in any event, if they should report voluntarily,

reporting for duty is only permissible in so far as it
is in the public interest, and

it is normally not possible to perform services under
an employment relationship governed by private
law — even another employment relationship,

whereas, in the case of Group B, ‘unpaid parental leave’,

1.

it is left to the individual worker in a particular
employment relationship alone to choose whether
she wishes to take unpaid parental leave to care for
her child and

2. whether, during that parental leave and in the time
available to her after caring for her children, she can
also undertake work of a limited nature in a private
employment relationship,

those differences constitute sufficient objective justifi-
cation for the different treatment of those periods for the
purposes of claims based on length of service?