Judgment of the Court (Fifth Chamber) of 23 October 2003 In Joined Cases C-4/02 and C-5/02 (Reference for a preliminary ruling from the Verwaltungsgericht Frankfurt am Main): Hilde Schönheit v Stadt Frankfurt am Main and between Silvia Becker v Land Hessen (Social policy — Equal pay for men and women — Applicability of Article 119 of the EC Treaty (Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC) and Article 141(1) and (2) EC and of Directive 86/378/EEC or Directive 79/7/EEC — Meaning of "pay" — Civil service pension scheme — Calculation of the old-age pension for part-time civil servants — Discriminatory treatment as compared with full-time workers — Indirect discrimination based on sex — Conditions governing justification for objective reasons unrelated to any discrimination on grounds of sex — Protocol concerning Article 119 of the EC Treaty (now Protocol concerning Article 141 EC) — Temporal effects)
Date: 2003-12-13
Institutions: Court of Justice
Subjects: European social policy, equal treatment, interpretation of the law, pension scheme, sexual discrimination

C 304/6

EN

Official Journal of the European Union

13.12.2003

JUDGMENT OF THE COURT

(Fifth Chamber)

of 23 October 2003

Council Directive 97/80/EC of 15 December 1997 on the
burden of proof in cases of discrimination based on sex (OJ
1998 L 14, p. 6), the Court (Fifth Chamber), composed of:
A. La Pergola (Rapporteur), acting as President of the Fifth
Chamber, P. Jann and S. von Bahr, Judges; L.A. Geelhoed,
Advocate General; H.A. Rühl, Principal Administrator, for the
Registrar, has given a judgment on 23 October 2003, in which
it has ruled:

In Joined Cases C-4/02 and C-5/02 (Reference for a
preliminary ruling from the Verwaltungsgericht Frankfurt
am Main): Hilde Schönheit v Stadt Frankfurt am Main and
between Silvia Becker v Land Hessen (1)

(Social policy — Equal pay for men and women — Applica-
bility of Article 119 of the EC Treaty (Articles 117 to 120 of
the EC Treaty have been replaced by Articles 136 EC to 143
EC) and Article 141(1) and (2) EC and of Directive 86/378/
EEC or Directive 79/7/EEC — Meaning of ‘pay’ — Civil
service pension scheme — Calculation of the old-age pension
for part-time civil servants — Discriminatory treatment as
compared with full-time workers — Indirect discrimination
based on sex — Conditions governing justification for
objective reasons unrelated to any discrimination on grounds
of sex — Protocol concerning Article 119 of the EC Treaty
(now Protocol concerning Article 141 EC) — Temporal
effects)

(2003/C 304/08)

(Language of the case: German)

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

In Joined Cases C-4/02 and C-5/02: References to the Court
under Article 234 EC by the Verwaltungsgericht Frankfurt am
Main (Germany) for a preliminary ruling in the proceedings
pending before that court between Hilde Schönheit and Stadt
Frankfurt am Main (C-4/02), and between Silvia Becker and
Land Hessen (C-5/02), on the interpretation of Article 119 of
the EC Treaty (Articles 117 to 120 of the EC Treaty have been
replaced by Articles 136 EC to 143 EC), of the Protocol
concerning Article 119 of the EC Treaty, annexed to the EC
Treaty by the Treaty on European Union (now the Protocol
concerning Article 141 EC), of Article 141(1) and (2) EC, of
Council Directive 79/7/EEC of 19 December 1978 on the
progressive implementation of the principle of equal treatment
for men and women in matters of social security (OJ 1979 L 6,
p. 24), of Council Directive 86/378/EEC of 24 July 1986 on
the implementation of the principle of equal treatment for
men and women in occupational social security schemes (OJ
1986 L 225, p. 40), as amended by Council Directive 96/97/
EC of 20 December 1996 (OJ 1997 L 46, p. 20), and of

1. A retirement pension paid under a scheme such as the one
established by the Gesetz über die Versorgung der Beamten und
Richter in Bund und Ländern of 24 August 1976, in the
version published on 16 March 1999, falls within the scope of
Article 119 of the EC Treaty (Articles 117 to 120 of the EC
Treaty have been replaced by Articles 136 EC to 143 EC) and
of Article 141(1) and (2) EC. Those provisions preclude
legislation, such as that deriving from Paragraph 85 of the
abovementioned law in conjunction with the old version of
Paragraph 14 thereof, which may entail a reduction in the
pension of civil servants who have worked part-time for at least
a part of their working life, where that category of civil servants
includes a considerably higher number of women than men,
unless the legislation is justified by objective factors unrelated to
any discrimination on grounds of sex.

2.

It is for the national court, which has sole jurisdiction to assess
the facts and interpret the national legislation, to determine
whether and to what extent a legislative provision which,
though applying independently of the sex of the worker, actually
affects a considerably higher percentage of women than men is
justified by objective factors unrelated to any discrimination on
grounds of sex.

Restricting public expenditure is not an objective which may be
relied on to justify different treatment on grounds of sex.

The different treatment of men and women may be justified,
depending on the circumstances, by reasons other than those
put forward at the time when the measure introducing the
difference in treatment was introduced.

National legislation, such as that deriving from Paragraph 85
of the Gesetz über die Versorgung der Beamten und Richter in
Bund und Ländern in conjunction with the old version of
Paragraph 14 thereof, which has the effect of reducing a
worker’s retirement pension by a proportion greater than that
resulting when his periods of part-time work are taken into
account cannot be regarded as objectively justified by the fact
that the pension is in that case consideration for less work or
on the ground that its aim is to prevent civil servants employed
on a part-time basis from being placed at an advantage in
comparison with those employed on a full-time basis.

13.12.2003

EN

Official Journal of the European Union

C 304/7

3.

Protocol No 2 concerning Article 119 of the Treaty establishing
the European Community and the Protocol
concerning
Article 141 EC annexed to the EC Treaty are to be interpreted
as precluding the application of Article 119 of the Treaty and
Article 141(1) and (2) EC respectively to benefits provided
under an occupational social security scheme payable in respect
of periods of employment prior to 17 May 1990, subject to the
exception for workers or those claiming under them who have
before that date initiated legal proceedings or
raised an
equivalent claim under the applicable national law.

(1) OJ C 109 of 4.5.2002.

1. Articles 1(4)(k) and 6(8) of Council Directive 90/496/EEC of
24 September 1990 on nutrition labelling for foodstuffs must
be interpreted as meaning that, first, the value of a nutrient
such as vitamin C which is indicated on a foodstuff following
an analysis of the foodstuff carried out by the manufacturer
may correspond to the value of that nutrient in the foodstuff in
question at the end of its minimum conservation period and,
second, that the determination of the permissible differences
between the value stated and the value established in the course
of an official check is, in the present state of Community law,
within the competence of the Member States.

2.

Consideration of the third question has not disclosed any factor
of such a kind as to affect the validity of Directive 90/496.

(1) OJ C 109 of 4.5.2002.

JUDGMENT OF THE COURT

(Sixth Chamber)

of 23 October 2003

in Case C-40/02 (Reference for a preliminary ruling from
the Unabhängiger Verwaltungssenat im Land Niederöster-
reich): Margareta Scherndl v Bezirkshauptmannschaft
Korneuburg (1)

(Directive 90/496/EEC — Nutrition labelling of foodstuffs
— Vitamin content — Declared value — Average value
— Reference date — Permissible differences between the
declared value and the value established in the course of an
official check — Proportionality — Legal certainty)

(2003/C 304/09)

(Language of the case: German)

JUDGMENT OF THE COURT

(Fifth Chamber)

of 23 October 2003

in Case C-109/02: Commission of the European Communi-
ties v Federal Republic of Germany (1)

(Failure of a Member State to fulfil obligations — Sixth
VAT Directive — National
legislation providing for a
reduced rate for musical ensembles and soloists provided the
latter organise the concert themselves)

(2003/C 304/10)

(Language of the case: German)

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

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

In Case C-40/02: Reference to the Court under Article 234 EC
by the Unabhängiger Verwaltungssenat im Land Niederöster-
reich (Austria) for a preliminary ruling in the proceedings
pending before that court between Margareta Scherndl and
Bezirkshauptmannschaft Korneuburg, on the interpretation
and validity of Articles 1(4)(k) and 6(8) of Council Directive
90/496/EEC of 24 September 1990 on nutrition labelling for
foodstuffs (OJ 1990 L 276, p. 40), the Court (Sixth Chamber),
J.-P. Puissochet, President of the Chamber,
composed of:
R. Schintgen, V. Skouris, F. Macken and J.N. Cunha Rodrigues
(Rapporteur), Judges; J. Mischo, Advocate General; R. Grass,
Registrar, has given a judgment on 23 October 2003, in which
it has ruled:

In Case C-109/02, Commission of the European Communities
(Agents: E. Traversa and G. Wilms) v Federal Republic of
Germany (Agents: W.-D. Plessing and M. Lumma): Application
for a declaration that, by applying a reduced rate of value
added tax to services provided directly to the public by musical
ensembles or for a concert organiser and to services provided
directly to the public by soloists, but applying the standard
rate of that tax to the services of soloists working for an
organiser, the Federal Republic of Germany has failed to fulfil
its obligations under the third subparagraph of Article 12(3)(a)
of the Sixth Council Directive 77/388/EEC of 17 May 1977
on the harmonisation of the laws of the Member States relating