Judgment of the Court of 9 September 2003 in Case C-151/02 (Reference for a preliminary ruling from the Landesarbeitsgericht Schleswig-Holstein): Landeshauptstadt Kiel v Norbert Jaeger (Social policy — Protection of the safety and health of workers — Directive 93/104/EC — Concepts of "working time" and "rest period" — On-call service ("Bereitschaftsdienst") provided by doctors in hospitals)
Date: 2003-11-01
Institutions: Court of Justice
Subjects: arrangement of working time, collective agreement, interpretation of the law, medical institution, organisation of work, rest period, working time

C 264/14

EN

Official Journal of the European Union

1.11.2003

1. Declares that, by failing to adopt the laws, regulations and
administrative provisions necessary to comply with Directive
1999/94/EC of the European Parliament and of the Council
of 13 December 1999 relating to the availability of consumer
information on fuel economy and CO2 emissions in respect of
the marketing of new passenger cars, the Italian Republic has
failed to fulfil its obligations under that directive;

1.

2.

2. Orders the Italian Republic to pay the costs.

(1) OJ C 68 of 16.3.2002.

Compliance with the prohibition of indirect discrimination on
grounds of sex is a condition governing the legality of all
measures adopted by the Community institutions.

Examination of Question 1 has failed to disclose any factor
capable of affecting the validity of the provision contained in
Article 5(1) of Council Directive 86/457/EEC of 15 September
1986 on specific training in general medical practice and
Article 34(1) of Council Directive 93/16/EEC of 5 April
1993 to facilitate the free movement of doctors and the mutual
recognition of their diplomas, certificates and other evidence of
formal qualifications, according to which part-time training in
general medical practice must include a certain number of
periods of full-time training.

(1) OJ C 97 of 20.4.2002.

JUDGMENT OF THE COURT

of 9 September 2003

in Case C-25/02 (Reference for a preliminary ruling
from the Bundesverwaltungsgericht): Katharina Rinke v
Ärztekammer Hamburg (1)

(Equal treatment for men and women — Directives 86/457/
EEC and 93/16/EEC — Obligation to undertake certain
periods of full-time training during part-time training in
general medical practice)

(2003/C 264/23)

(Language of the case: German)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-25/02: Reference to the Court under Article 234 EC
by the Bundesverwaltungsgericht (Germany) for a preliminary
ruling in the proceedings pending before that court between
Katharina Rinke and Ärztekammer Hamburg on the interpret-
ation of Article 5 of Council Directive 86/457/EEC of 15 Sep-
tember 1986 on specific training in general medical practice
(OJ 1986 L 267, p. 26) and Article 34 of Council Directive 93/
16/EEC of 5 April 1993 to facilitate the free movement of
doctors and the mutual recognition of their diplomas, certifi-
cates and other evidence of formal qualifications (OJ 1993
L 165, p. 1), and on the compatibility of those provisions with
the prohibition of indirect discrimination on grounds of sex as
laid down in Council Directive 76/207/EEC of 9 February 1976
on the implementation of the principle of equal treatment for
men and women as regards access to employment, vocational
training and promotion, and working conditions (OJ 1976
L 39, p. 40), the Court, composed of: G.C. Rodríguez Iglesias,
President,
J.-P. Puissochet, M. Wathelet, R. Schintgen and
C.W.A. Timmermans (Presidents of Chambers), C. Gulmann,
D.A.O. Edward, A. La Pergola, P. Jann (Rapporteur), V. Skouris,
F. Macken, N. Colneric, S. von Bahr, J.N. Cunha Rodrigues and
L.A. Geelhoed, Advocate General;
A. Rosas,
M.-F. Contet, Principal Administrator, for the Registrar, has
given a judgment on 9 September 2003, in which it has ruled:

Judges;

JUDGMENT OF THE COURT

of 9 September 2003

in Case C-151/02 (Reference for a preliminary ruling from
the Landesarbeitsgericht Schleswig-Holstein): Landes-
hauptstadt Kiel v Norbert Jaeger (1)

(Social policy — Protection of the safety and health of
workers — Directive 93/104/EC — Concepts of ‘working
time’ and ‘rest period’ — On-call service (‘Bereitschafts-
dienst’) provided by doctors in hospitals)

(2003/C 264/24)

(Language of the case: German)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-151/02: Reference to the Court under Article 234
EC by the Landesarbeitsgericht Schleswig-Holstein (Germany)
for a preliminary ruling in the proceedings pending before that
Jaeger
court between Landeshauptstadt Kiel and Norbert
on the interpretation of Council Directive 93/104/EC of
23 November 1993 concerning certain aspects of the organis-
ation of working time (OJ 1993 L 307, p. 18) and, in particular,
Articles 2(1) and (3) thereof, the Court, composed of: G.C. Ro-
dríguez Iglesias, President, M. Wathelet, R. Schintgen (Rappor-
teur) and C.W.A. Timmermans, Presidents of Chambers,
C. Gulmann, D.A.O. Edward, P. Jann, V. Skouris, F. Macken,
N. Colneric, S. von Bahr, J.N. Cunha Rodrigues and A. Rosas,
Judges; D. Ruiz-Jarabo Colomer, Advocate General; H.A. Rühl,
Principal Administrator, for the Registrar, has given a judgment
on 9 September 2003, in which it has ruled:

1.11.2003

EN

Official Journal of the European Union

C 264/15

1.

Council Directive 93/104/EC of 23 November 1993 concern-
ing certain aspects of the organisation of working time must be
interpreted as meaning that on-call duty (‘Bereitschaftsdienst’)
performed by a doctor where he is required to be physically
present in the hospital must be regarded as constituting in its
totality working time for the purposes of that directive even
where the person concerned is permitted to rest at his place of
work during the periods when his services are not required with
the result that that directive precludes legislation of a Member
State which classifies as rest periods an employee’s periods of
inactivity in the context of such on-call duty.

2. Directive 93/104 must also be interpreted as meaning that:

— in circumstances such as those in the main proceedings,
that directive precludes legislation of a Member State
which, in the case of on-call duty where physical presence
in the hospital is required, has the effect of enabling, in
an appropriate case by means of a collective agreement or
a works agreement based on a collective agreement, an
offset only in respect of periods of on-call duty during
which the worker has actually been engaged in professional
activities;

— in order to come within the derogating provisions set out
in Article 17(2), subparagraph 2.1(c)(i) of the directive,
a reduction in the daily rest period of 11 consecutive hours
by a period of on-call duty performed in addition to
normal working time is subject to the condition that
equivalent compensating rest periods be accorded to the
workers concerned at times immediately following the
corresponding periods worked;

— furthermore, in no circumstances may such a reduction in
the daily rest period lead to the maximum weekly working
time laid down in Article 6 of the directive being exceeded.

(1) OJ C 156 of 29.6.2002.

Reference for a preliminary ruling by the Tribunale Civile
e Penale di Perugia — Ufficio per le indagini preliminari
— by order of that Court of 12 June 2003 in the case
against Alessandrello Rosario and Others

(Case C-338/03)

(2003/C 264/25)

Reference has been made to the Court of Justice of the
European Communities by order of the Tribunale Civile e

Penale di Perugia — Ufficio per le indagini preliminari —
(District Civil and Criminal Court, Perugia — Preliminary
Investigations Section) of 12 June 2003, received at the Court
Registry on 1st August 2003, for a preliminary ruling in the
case against Alessandrello Rosario and Others on the following
questions:

1. With reference to the duty of each Member State to adopt
‘appropriate penalties’ for the infringements established
by the first and fourth directives (Directive 68/151/
EEC (1) and Directive 78/660/EEC (2)), must the directives
themselves and in particular the combined provisions of
Article 44(3)(g) of the EC Treaty, Articles 2(1)(f) and 6 of
the first directive (Directive 68/151/EEC) and Article 2(2),
(3) and (4) of the fourth directive (Directive 78/660/EEC),
as consolidated by Directive 83/349 (3) and Directive 90/
605 (4), be interpreted as meaning that that legislation
precludes a law of a Member State which, in amending
the system of penalties already in force in respect of
company law offences concerning the infringement of the
obligations imposed in order to safeguard the principle of
public and accurate information on companies,
lays
down a sanctionative system which in the specific
instance is not informed by the criteria of effectiveness,
proportionality and dissuasiveness of
the sanctions
imposed in order to ensure that that principle is upheld?

2. Must those directives and, in particular, Article 44(3)(g)
of the EC Treaty, Articles 2(1)(f) and 6 of the first directive
(Directive 68/151/EEC) and Article 2(2), (3) and (4) of the
fourth directive (Directive 78/660/EEC), as consolidated
by Directive 83/349 and Directive 90/605), be interpreted
as meaning that that legislation precludes a law of a
Member State which does not make it a punishable
offence for companies to infringe obligations concerning
disclosure and the provisions of accurate information on
certain company documents (including the balance sheet
and the profit and loss account) where the disclosure
of false company accounts or the failure to provide
information result in a distortion of the financial results
for a given period, or a distortion in the net assets, which
does not exceed a certain percentage threshold?

3. Must those directives and, in particular, Article 44(3)(g)
of the EC Treaty, Articles 2(1)(f) and 6 of the first directive
(Directive 68/151/EEC) and Article 2(2), (3) and (4) of the
fourth directive (Directive 78/660/EEC), as consolidated
by Directive 83/349 and Directive 90/605), be interpreted
as meaning that that legislation precludes a law of a
Member State which does not make it a punishable
offence for companies to infringe obligations concerning
disclosure and the provision of accurate information
where statements are made which, although aimed at
deceiving members or the public with a view to securing
an unjust profit, are the consequence of estimated
valuations which, taken individually, depart from actual
values to an extent not greater than a certain threshold?