Judgment of the Court of 30 September 2003 in Case C-224/01 (Reference for a preliminary ruling from the Landesgericht für Zivilrechtssachen Wien): Gerhard Köbler v Republik Österreich (Equal treatment — Remuneration of university professors — Indirect discrimination — Length-of-service increment — Liability of a Member State for damage caused to individuals by infringements of Community law for which it is responsible — Infringements attributable to a national court)
Date: 2003-11-15
Institutions: Court of Justice
Subjects: Austria, EU law - national law, EU legal system, higher court, interpretation of the law, ministerial responsibility

15.11.2003

EN

Official Journal of the European Union

C 275/13

Maria Walcher and Bundesamt für Soziales und Behinderten-
wesen Steiermark, on the interpretation of Council Directive
80/987/EEC of 20 October 1980 on the approximation of the
laws of the Member States relating to the protection of
employees in the event of the insolvency of their employer (OJ
1980 L 283, p. 23), as amended by the Act concerning the
conditions of accession of the Republic of Austria, the Republic
of Finland and the Kingdom of Sweden and the adjustments to
the Treaties on which the European Union is founded (OJ
1994 C 241, p. 21, and OJ 1995 L 1, p. 1), the Court (Sixth
Chamber), composed of:
J.-P. Puissochet, President of the
Chamber, C. Gulmann, F. Macken, N. Colneric (Rapporteur)
and J.N. Cunha Rodrigues, Judges; J. Mischo, Advocate General;
R. Grass, Registrar, has given a judgment on 11 September
2003, in which it has ruled:

JUDGMENT OF THE COURT

of 30 September 2003

in Case C-224/01 (Reference for a preliminary ruling from
the Landesgericht für Zivilrechtssachen Wien): Gerhard
Köbler v Republik Österreich (1)

(Equal treatment — Remuneration of university professors
— Indirect discrimination — Length-of-service increment —
Liability of a Member State for damage caused to individuals
by infringements of Community law for which it is respon-
sible — Infringements attributable to a national court)

1.

2.

Council Directive 80/987/EEC of 20 October 1980 on the
approximation of the laws of the Member States relating to the
protection of employees in the event of the insolvency of their
employer, as amended by the Act concerning the conditions of
accession of the Republic of Austria, the Republic of Finland
and the Kingdom of Sweden and the adjustments to the Treaties
on which the European Union is founded precludes a rule that
an employee with a significant shareholding in the private
limited company that employs him, but who does not exercise a
dominant influence over that company, loses, pursuant to the
Austrian case-law relating to shareholder loans in lieu of capital
contributions, his entitlement to the guarantee in respect of
claims for outstanding pay which result from the employer’s
insolvency and are covered by Article 4(2) of that directive if, in
the 60 days from the time he first could have become aware
that the company was no longer creditworthy, he fails to make
any genuine demand for payment of salary owed to him.

To avoid abuses a Member State is, in principle, entitled to take
measures that deny such an employee an entitlement to a
guarantee in respect of claims for outstanding salary arising
after the date on which an employee who is not a shareholder
would have resigned on the ground of non-payment of his
salary, unless it is established that there has been no abusive
conduct. As regards the guarantee to pay claims covered by
Article 4(2) of Directive 80/987, as amended, the Member
State is not entitled to assume that, as a general rule, an
employee who is not a shareholder would have resigned on the
ground of non-payment of his salary before his salary had been
in arrears for a period of three months.

(1) OJ C 212 of 28.7.2001.

(2003/C 275/21)

(Language of the case: German)

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

In Case C-224/01: Reference to the Court under Article 234
EC by the Landesgericht für Zivilrechtssachen Wien (Austria),
for a preliminary ruling in the proceedings pending before that
court between Gerhard Köbler and Republik Österreich, on
the interpretation, first, of Article 48 of the EC Treaty (now,
after amendment, Article 39 EC) and, secondly, the judgments
of the Court in Joined Cases C-46/93 and C-48/93Brasserie du
Pêcheur and Factortame [1996] ECR I-1029 and Case C-54/
96Dorsch Consult [1997] ECR I-4961, the Court, composed of:
G.C. Rodríguez Iglesias, President, J.-P. Puissochet, M. Wathelet,
R. Schintgen and C.W.A. Timmermans (Rapporteur) (Presi-
dents of Chambers), C. Gulmann, D.A.O. Edward, A. La
Pergola, P. Jann, V. Skouris, F. Macken, N. Colneric, S. von
Bahr, J.N. Cunha Rodrigues and A. Rosas, Judges; P. Léger,
Advocate General; H.A. Rühl, Principal Administrator, for the
Registrar, has given a judgment on 30 September 2003, in
which it has ruled:

1.

The principle that Member States are obliged to make good
damage caused to individuals by infringements of Community
law for which they are responsible is also applicable where the
alleged infringement stems from a decision of a court adjudicat-
ing at last instance where the rule of Community law infringed
is intended to confer rights on individuals, the breach is
sufficiently serious and there is a direct causal link between that
breach and the loss or damage sustained by the injured parties.
In order to determine whether the infringement is sufficiently
serious when the infringement at issue stems from such a
decision, the competent national court, taking into account the
specific nature of the judicial function, must determine whether
that infringement is manifest. It is for the legal system of each
Member State to designate the court competent to determine
disputes relating to that reparation.

C 275/14

EN

Official Journal of the European Union

15.11.2003

2. Article 48 of the EC Treaty (now, after amendment, Article 39
EC) and Article 7(1) of Regulation (EEC) No 1612/68 of the
Council of 15 October 1968 on freedom of movement for
workers within the Community are to be interpreted as meaning
that they preclude the grant, under conditions such as those laid
down in Article 50a of the Gehaltsgesetz 1956 (law on salaries
of 1956), as amended in 1997, of a special
length-of-
service increment which, according to the interpretation of the
Verwaltungsgerichtshof (Austria) in its judgment of 24 June
1998, constitutes a loyalty bonus.

3. An infringement of Community law, such as that stemming in
the circumstances of the main proceedings from the judgment
of the Verwaltungsgerichtshof of 24 June 1998, does not have
the requisite manifest character for liability under Community
law to be incurred by a Member State for a decision of one of
its courts adjudicating at last instance.

(1) OJ C 212 of 28.7.2001.

JUDGMENT OF THE COURT

(Fifth Chamber)

of 2 October 2003

in Case C-232/01 (Reference for a preliminary ruling from
the Politierechtbank te Mechelen): Criminal procedure
against Hans van Lent (1)

(Freedom of movement for workers — Vehicle leasing —
Obligation to register vehicle in worker’s Member State of
residence)

(2003/C 275/22)

(Language of the case: Dutch)

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

In Case C-232/01: Reference to the Court under Article 234
EC by the Politierechtbank te Mechelen (Belgium)
for a
preliminary ruling in the criminal proceedings before that
court against Hans van Lent, on the interpretation of Article
39 EC, the Court (Fifth Chamber), composed of: M. Wathelet,
President of the Chamber, D.A.O. Edward, P. Jann, S. von Bahr
(Rapporteur) and A. Rosas, Judges; P. Léger, Advocate General;
M.-F. Contet, Principal Administrator, for the Registrar, has
given a judgment on 2 October 2003, in which it has ruled:

Article 39 EC precludes national rules of a Member State, such as
those in the present case, which prohibit a worker who is domiciled
in that Member State from using on its territory a vehicle registered
in another neighbouring Member State, belonging to a leasing

company established in that second Member State, and made
available to the worker by his employer who is also established in the
second Member State.

(1) OJ C 227 of 11.8.2001.

JUDGMENT OF THE COURT

of 30 September 2003

in Case C-239/01: Federal Republic of Germany v Com-
mission of the European Communities (1)

(Agriculture — EAGGF — Partial annulment of Regulation
(EC) No 690/2001 — Special market support measures in
the beef sector — Implementing regulation of the Com-
mission providing for compulsory co-financing by the Mem-
ber States)

(2003/C 275/23)

(Language of the case: German)

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

In Case C-239/01, Federal Republic of Germany (Agent: W.-D.
Plessing, acting as Agent, assisted by J. Sedemund) supported
by Kingdom of Denmark (Agents: J. Molde and J. Bering
Liisberg) with an address for service in Luxembourg v Com-
mission of the European Communities (Agents: D. Booß and
M. Niejahr): Application for annulment of Article 5(5) of
Commission Regulation (EC) No 690/2001 of 3 April 2001
on special market support measures in the beef sector (OJ
2001 L 95, p. 8), in so far as that provision requires each
Member State concerned to finance 30 % of the price of the
meat purchased under that regulation, the Court, composed of:
G.C. Rodríguez Iglesias, President, J.-P. Puissochet, M. Wathelet,
R. Schintgen and C.W.A. Timmermans (Presidents of Cham-
bers), C. Gulmann, D.A.O. Edward, A. La Pergola (Rapporteur),
P. Jann, V. Skouris, F. Macken, N. Colneric and S. von Bahr,
Judges; J. Mischo, Advocate General; M.-F. Contet, Principal
Administrator, for the Registrar, has given a judgment on
30 September 2003, in which it:

1. Annuls Article 5(5) of Commission Regulation (EC) No 690/
2001 of 3 April 2001 on special market support measures in
the beef sector in so far as that provision requires each Member
State concerned to finance 30 % of the price of the meat
purchased under that regulation;

2. Orders the Commission of the European Communities to pay

the costs.

(1) OJ C 245 of 1.9.2001.