Case C-313/02: Reference for a preliminary ruling by the Oberster Gerichtshof (Supreme Court) by order of that Court of 8 August 2002 in the case of Nicole Wippel against Peek & Cloppenburg GmbH & Co KG
Date: 2002-11-23
Institutions: Court of Justice
Subjects: equal pay, equal treatment, gender equality, interpretation of the law, right to work, work schedule, working time

23.11.2002

EN

Official Journal of the European Communities

C 289/9

Reference for a preliminary ruling by the Oberster
Gerichtshof (Republic of Austria) by order of that Court
of 23 July 2002 in the case of Peter Haackert against
Pensionsversicherungsanstalt der Angestellten

(Case C-303/02)

(2002/C 289/14)

Reference has been made to the Court of Justice of the
European Communities by order of the Oberster Gerichtshof
(Republic of Austria)
(Supreme Court) of 23 July 2002,
received at the Court Registry on 26 August 2002, for a
preliminary ruling in the case of Peter Haackert against
Pensionsversicherungsanstalt
(Salaried
Employees’ Pension Insurance Institution) on the following
question:

der Angestellten

‘Is the derogation contained in Article 7(1)(a) of Council
Directive 79/7/EEC of 19 December 1978 (1) on the progress-
ive implementation of the principle of equal treatment for
men and women in matters of social security to be interpreted
as being applicable to a benefit such as the early old-age
pension in connection with unemployment in respect of which
different pensionable ages for men and for women are
determined in national law?’

( 1) OJ L 6 [1979], p. 24.

pay for men and women (OJ 1975 L 45, p. 19,
hereinafter ‘Directive 75/117/EEC’) and Clause 2
of the Framework Agreement on part-time work
concluded by UNICE, CEEP and the ETUC (herein-
after,
the ‘Framework Agreement on part-time
work’), which was implemented by Council Directive
97/81/EC (OJ 1997 L 14, p. 9), and Point 9 of the
the Fundamental Social
Community Charter of
Rights of Workers of 9 December 1989 to be
construed in such a way (concept of ‘worker’) that
constant protection is afforded even to persons such
in a
as the claimant in the present case who,
comprehensive framework agreement on employ-
ment, agree terms on pay, termination of employ-
ment and the like but also stipulate that the amount
and positioning of working time should be governed
by the workload and agreed by the parties in the
light of the individual circumstances of each case?

(b) Does the concept of ‘worker’ within the meaning of
Question 1(a) apply where there is a prospect of
work on approximately three days a week and two
Saturdays in each month without any binding
commitment?

(c) Does the concept of ‘worker’ within the meaning of
Question 1(a) apply where work is actually carried
out on approximately three days a week and two
Saturdays in each month?

(d)

Is the Community Charter of the Fundamental Social
Rights of Workers of 9 December 1989 legally
binding, at least in so far as reliance is placed on it
in the interpretation of other rules of Community
law?

Reference for a preliminary ruling by the Oberster
Gerichtshof (Supreme Court) by order of that Court of
8 August 2002 in the case of Nicole Wippel against Peek
& Cloppenburg GmbH & Co KG

(Case C-313/02)

(2002/C 289/15)

Reference has been made to the Court of Justice of the
European Communities by order of the Oberster Gerichtshof
(Supreme Court) of 8 August 2002, received at the Court
Registry on 5 September 2002, for a preliminary ruling in the
case of Nicole Wippel against Peek & Cloppenburg GmbH &
Co KG on the following questions:

1.

(a) Are Article 141 EC and 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

2. Are Article 141 EC and Article 1 of Directive 75/117/
EEC and Article 5 of Directive 76/207/EEC (OJ L 039,
p. 14, hereinafter ‘Directive 76/207/EEC’) and Clause 4 of
the Framework Agreement on part-time work to be
construed as meaning that
it constitutes objectively
unjustified unequal treatment if,

in the case of full-time workers (approximately 60 % men
and 40 % women), provision is made by statute or
collective agreement for there to be rules not only on the
amount of working time but also (to some extent)
regarding its positioning, the observance of which a full-
time worker is entitled to demand even in the absence of
a contractual arrangement,

whereas there are no such rules for part-timers, the vast
majority of whom are women (approximately 90 %
women and 10 % men), even where the contracting
parties have not come, as required by statute, to a
contractual arrangement on this point?

C 289/10

EN

Official Journal of the European Communities

23.11.2002

3. Are Article 141 EC and Article 1 of Directive 75/117/
EEC and Article 5 of Directive 76/207/EEC and Clause 4
of the Framework Agreement on part-time work to be
construed as meaning that it constitutes objectively
unjustified unequal
in the case of part-
treatment if,
timers, on the assumption that the vast majority of them
are women (approximately 90 % women and 10 % men),
an employer expressly rules out an agreement on the
positioning and amount of working time, whereas in the
case of full-time workers, on the assumption that women
are not in that same majority, both the amount and, to
some extent, the allocation of working time are already
laid down by statute or collective agreement?

4. Are Article 141 EC and Article 1 of Directive 75/117/
EEC and Article 5 of Directive 76/207/EEC and Clause 4
together with Clause 1(b) (facilitation of the development
of part-time work) of the Framework Agreement on part-
time work to be construed as meaning that in order to
compensate for objectively unjustified unequal treatment
it is necessary and permissible

A with regard to the amount of working time, to
presume a definite amount and, if so, to presume

1.

normal working time, or

2.

the maximum length of weekly working time
actually worked, unless the employer can prove
that this was due to unusually high demand for
work at that particular time, or

3.

the demand ascertained at the date of con-
clusion of the contract of employment, or

4.

average weekly working time, and

B

with regard to the positioning of working time, in
order to compensate for the extra burden on the
worker caused by flexibility and for the benefit
afforded to the employer, to award the worker

1.

2.

3.

a ‘reasonable’ supplement on the hourly wage,
determined in the light of the individual cir-
cumstances in question, or

a minimum supplement equal to that paid to
full-time workers who work more than normal
working hours (eight hours a day or forty
hours a week), or

irrespective of the amount of time worked,
compensation for time not remunerated as
working time during which, under the agree-

ment, it would be possible to schedule working
time (potential working time), if the length of
prior notice of a job placement should be less
than

(a) 14 days or

(b)

a reasonable amount of time?

Reference for a preliminary ruling by the Bundesfinanz-
hof by order of that Court of 4 July 2002 in the
proceedings between Finanzamt Rendsburg and Detlev
Harbs

(Case C-321/02)

(2002/C 289/16)

Justice of the
Reference has been made to the Court of
European Communities by order of
the Bundesfinanzhof
(Federal Finance Court) of 4 July 2002, received at the Court
Registry on 13 September 2002, for a preliminary ruling in
the proceedings between Finanzamt Rendsburg and Detlev
Harbs on the following question:

Where the owner of a farm:

— gives up part of his farm (the entire dairy cow operation)
and leases the property necessary for that operation to
another farmer;

— and continues to farm on a not insignificant scale after

granting the lease,

may he treat the turnover from the lease — like the rest of his
turnover — under the flat-rate scheme for farmers (Article 25
of Directive 77/388/EEC), or is the turnover from the lease
taxable under the general rules?

Reference for a preliminary ruling by the Sozialgericht
Augsburg by order of that Court of 7 March 2002 in the
proceedings between Eva-Maria Weller and Deutsche
Angestellten-Krankenkasse

(Case C-322/02)

(2002/C 289/17)

Reference has been made to the Court of
Justice of the
European Communities by order of the Sozialgericht Augsburg
(Social Court, Augsburg) of 7 March 2002, received at the
Court Registry on 16 September 2002, for a preliminary ruling
in the proceedings between Eva-Maria Weller and Deutsche
Angestellten-Krankenkasse on the following questions: