Case C-229/03: Reference for a preliminary ruling by the Landesgericht für Zivilrechtsachen Wien by order of that court of 7 April 2003 in the case of Monika Herbstrith against Republic of Austria
Date: 2004-02-21
Institutions: Court of Justice
Subjects: Austria, appointment of staff, equal treatment, gender equality, interpretation of the law, promotion

C 47/12

EN

Official Journal of the European Union

21.2.2004

8. Are the provisions of the EC Treaty founding state liability
under the criteria laid down by the Court of Justice where
rights directly conferred on EC citizens by the EC Treaty
are grossly and culpably infringed to be interpreted as
meaning that relevant restrictions on state liability under
the national legal order, or also on the basis of decisions
of national courts (in particular to the effect that claims
for compensation in regard to foreign policy measures
are precluded), are in any event unlawful?

does not provide in the event of irregular legislative
measures (Paragraph 1 AHG — ‘in enforcement of the
Laws ...’), also to be classified as a damages claim?

(1) Brasserie du Pêcheur SA v Bundesrepublik Deutschland and The
Queen v Secretary of State for Transport, ex parte: Factortame Ltd
and Others [1996] ECR I-1029.

(2) Courage Ltd v Bernard Crehan [2001] ECR I-6297.

Reference for a preliminary ruling by the Landesgericht
für Zivilrechtssachen Wien by order of that court of
15 April 2003 in the case of Helmut Fröschl against
Republic of Austria

Reference for a preliminary ruling by the Landesgericht
für Zivilrechtsachen Wien by order of that court of
7 April 2003 in the case of Monika Herbstrith against
Republic of Austria

(Case C-184/03)

(2004/C 47/19)

(Case C-229/03)

(2004/C 47/20)

Reference has been made to the Court of Justice of the
European Communities by order of the Landesgericht für
Zivilrechtssachen Wien (Regional Court for civil cases, Vienna)
of 15 April 2003, received at the Court Registry on 5 May
2003, for a preliminary ruling in the case of Helmut Fröschl
against Republic of Austria on the following questions:

1.

In 1998 was it contrary to then directly applicable
Community law, in particular Articles 12, 43 and 49 of
the EC Treaty, to interpret Paragraph 373c(3)(a), (b) and
(c) of the Gewerbeordnung 1994 (Trade Code, GewO
1994), BGBl No 194, in the version of BGBl No I 63/
1997, and the Regulation of the Federal Minister for
Economic Affairs on the grant of exemption from the
prescribed proof of competence for nationals of Member
States of the Agreement on the European Economic Area,
in such a way that a national
BGBl No 775/1993,
photographer is prohibited from exercising his trade
because the qualifications set out there for proof of
competence have been acquired by him in Austria and
not in another State of the EEA?

If question 1 is answered in the affirmative:

According to the settled case-law of the Court of Justice
(e.g. Joined Cases C-46/93 and C-48/93 (1); Case C-453/
99 (2)), is the payment of the costs which the plaintiff has
to incur in domestic proceedings, including his recourse
to public law courts, in order to have a law contrary to
Community law set aside and for which national law

Reference has been made to the Court of Justice of the
European Communities by order of the Landesgericht für
Zivilrechtsachen Wien (Regional civil court, Vienna) of 7 April
2003, received at the Court Registry on 26 May 2003, for a
preliminary ruling in the case of Monika Herbstrith against
Republic of Austria on the following questions:

1.

2.

Is EU law concerning equal treatment of men and women
at work, in particular Directive 76/207/EEC (1), directly
applicable, so that, as to amount, a claim for compen-
sation under Paragraph 15(1) of the B-GBG may be
obtained to the full extent of the damage occasioned,
irrespective of any limitation under Austrian domestic
legislation or, in the absence of any such direct applica-
bility of EU law, is there a claim founded on state liability
for compensation to the full extent of the damage?

In the assessment of claims in respect of the foregoing is
the rule concerning the burden of proof in Article 4 of
Council Directive 97/80/EC (2) directly applicable and, if
so,

(a)

does that apply on the basis that an expert opinion
within the meaning of Paragraph 22(1) of the B-
GBG is sufficient for the purposes of attestation if it
appears conclusively and unreservedly that there is
discrimination and it cannot be ruled out that such
discrimination arose for gender-related reasons, with
the result that in the case giving rise to this reference
the opinion of the federal committee on equal
treatment of 9 November 1998 satisfies this require-
ment

21.2.2004

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Official Journal of the European Union

C 47/13

(b) does that apply notwithstanding an opinion as
mentioned above on the basis that where the
plaintiff proves or even where the plaintiff substan-
tiates that in the filling of the post the applicant
preferred to the plaintiff was less well-qualified than
the plaintiff the rule of evidence under this directive
comes into effect

(c)

and on the basis that proof to the contrary may only
be regarded as conclusive if it leads to the factual
finding that the candidate appointed was better
suited or that in actual fact a non-gender-related
reason was the decisive factor in the appointment of
a less well-suited candidate?

(1) OJ 1976 L 39, p. 40.
(2) OJ 1997 L 14, p. 6.

4. Does Community law also require the payment of

damages for non-material loss?

5. As a matter of Community law, is the national court
required of its own motion to order the payment of
punitive damages or damages for non-material loss?

6.

Is the limitation period of one year for bringing an action
for damages for breach of Articles 81 and 82 EC under
Italian law too short and therefore in conflict with
Community law?

7. As a matter of Community law, for the purposes of the
limitation period for bringing an action for damages,
does time begin to run from the day on which the
infringement of Articles 81 and 82 EC was committed or
the day on which that infringement came to an end?

8. Does Community law require national courts to disapply
national rules in conflict with Community law or rather
to interpret them so as to comply with Community law?

Reference for a preliminary ruling by the Ufficio del
guidice di pace de Bitonto by order of that Court of
6 October 2003 in the case of Antonio Cannito against
Fondiaria-Sai Ass.ni.

(Case C-438/03)

(2004/C 47/21)

Reference for a preliminary ruling by the Ufficio del
guidice di pace de Bitonto by order of that Court of
6 October 2003 in the case of Antonio Cannito against
Fondiaria-Sai Ass.ni.

Reference has been made to the Court of Justice of the
European Communities by order of the Ufficio del guidice di
pace de Bitonto of 6 October 2003, received at the Court
Registry on 16 October 2003, for a preliminary ruling in the
case of Antonio Cannito against Fondiaria-Sai Ass.ni. on the
following questions:

1. Do the facts as found in Judgment No 2199 of the
Consiglio di Stato (Council of State) of 23 April 2002 and
in Judgment No 6139 of the Tribunale Amministrativo
Regionale (Regional Administrative Court) Lazio (Rome)
of 5 July 2001, which are deemed to be set out here in
full, constitute infringements of Community law,
in
particular of Articles 81 and 82 EC?

2. Does an infringement of Articles 81 and 82 EC imply an
obligation on the part of the person committing it to
compensate end users, and all those who demonstrate
that they have suffered any injury, for damage suffered?

3.

In assessing the amount of damages, in addition to the
restitution of sums charged in breach of Community
rules, is the national court required (again as a matter of
Community law) to award the injured party a sum by way
of punitive damages against those persons responsible
for the prohibited agreement or abuse of a dominant
position?

(Case C-439/03)

(2004/C 47/22)

Reference has been made to the Court of Justice of the
European Communities by order of the Ufficio del guidice di
pace de Bitonto of 6 October 2003, received at the Court
Registry on 16 October 2003, for a preliminary ruling in the
case of Antonio Cannito against Fondiaria-Sai Ass.ni. on the
following questions:

1. Do the facts as found in Judgment No 2199 of the
Consiglio di Stato (Council of State) of 23 April 2002 and
in Judgment No 6139 of the Tribunale Amministrativo
Regionale (Regional Administrative Court) Lazio (Rome)
of 5 July 2001, which are deemed to be set out here in
full, constitute infringements of Community law,
in
particular of Articles 81 and 82 EC?

2. Does an infringement of Articles 81 and 82 EC imply an
obligation on the part of the person committing it to
compensate end users, and all those who demonstrate
that they have suffered any injury, for damage suffered?