Judgment of the Court of 13 January 2004 in Case C-256/01 (Reference for a preliminary ruling from the Court of Appeal (England & Wales) (Civil Division): Debra Allonby v Accrington & Rossendale College, Education Lecturing Services, trading as Protocol Professional, formerly Education Lecturing Services Secretary of State for Education and Employment (Principle of equal pay for men and women — Direct effect — Meaning of worker — Self-employed female lecturer undertaking work presumed to be of equal value to that which is undertaken in the same college by male lecturers who are employees, but under contract with a third company — Self-employed lecturers not eligible for membership of an occupational pension scheme)
Date: 2004-02-21
Institutions: Court of Justice
Subjects: equal pay, gender equality, interpretation of the law, pension scheme, teacher, work contract

C 47/4

EN

Official Journal of the European Union

21.2.2004

Community law on freedom to provide services precludes a business
from being subject to an obligation to be entered on the trades register
which delays, complicates or renders more onerous the provision of its
services in the host Member State where the conditions prescribed by
the directive governing recognition of professional qualifications
which is applicable to pursuit of that activity in the host Member
State are satisfied.

The mere fact that a business established in one Member State
supplies identical or similar services in a repeated or more or less
regular manner in a second Member State, without having an
infrastructure there enabling it to pursue a professional activity there
on a stable and continuous basis and, from the infrastructure, to hold
itself out to, amongst others, nationals of the second Member State,
cannot be sufficient for it to be regarded as established in the second
Member State.

(1) OJ C 212 of 28.7.2001.

composed of: V. Skouris, acting for the President of the
Sixth Chamber, J.-P. Puissochet, R. Schintgen, F. Macken and
N. Colneric (Rapporteur), Judges; L.A. Geelhoed, Advocate
General; L. Hewlett, Principal Administrator, for the Registrar,
has given a judgment on 15 January 2004, in which it has
ruled:

Articles 1 and 2 of Council Regulation (EEC) No 3950/92 of
28 December 1992 establishing an additional levy in the milk and
milk products sector do not authorise the competent body to act
directly, in cases other than that of direct sales, against a producer to
recover the amount owed by him in respect of the additional levy on
milk. However, the Member States’ obligation under Article 10 EC
to take measures to ensure collection of the levy in the event of the
mechanism provided for in Article 2(2) of that regulation being
frustrated includes the power to take direct action against the producer
with a view to recovering the amount payable where it is established
that the producer has not paid it to the purchaser and that the
purchaser is not taking due steps to collect it from the producer. On
the other hand, non-compliance with the conditions laid down in
Article 7 of Commission Regulation (EEC) No 536/93 of 9 March
1993 laying down detailed rules on the application of the additional
levy on milk and milk products, and in particular the absence of
approval as purchaser, is not in itself relevant.

(1) OJ C 352 of 4.12.1999.

JUDGMENT OF THE COURT

(Sixth Chamber)

of 15 January 2004

in Case C-230/01 (Reference for a preliminary ruling from
the Court of Appeal (England and Wales) (Civil Division):
The Intervention Board for Agricultural Produce v Peny-
coed Farming Partnership (1)

(Regulation (EEC) No 3950/92 — Additional levy in the
milk and milk products sector — Deliveries by a producer to
a purchaser — Payment of levy — Recovery from the
producer)

(2004/C 47/06)

(Language of the case: English)

In Case C-230/01: Reference to the Court under Article 234
EC by the Court of Appeal (England and Wales) (Civil Division)
for a preliminary ruling in the proceedings pending before that
court between The Intervention Board for Agricultural Produce
and Penycoed Farming Partnership, on the interpretation of
Council Regulation (EEC) No 3950/92 of 28 December 1992
establishing an additional levy in the milk and milk products
sector (OJ 1992 L 405, p. 1) and Commission Regulation
(EEC) No 536/93 of 9 March 1993 laying down detailed rules
on the application of the additional levy on milk and milk
products (OJ 1993 L 57, p. 12), the Court (Sixth Chamber),

JUDGMENT OF THE COURT

of 13 January 2004

in Case C-256/01 (Reference for a preliminary ruling from
the Court of Appeal (England & Wales) (Civil Division):
Debra Allonby v Accrington & Rossendale College, Edu-
cation Lecturing Services,
trading as Protocol Pro-
fessional, formerly Education Lecturing Services Sec-
retary of State for Education and Employment (1)

(Principle of equal pay for men and women — Direct effect
— Meaning of worker — Self-employed female lecturer
undertaking work presumed to be of equal value to that
which is undertaken in the same college by male lecturers
who are employees, but under contract with a third company
— Self-employed lecturers not eligible for membership of an
occupational pension scheme)

(2004/C 47/07)

(Language of the case: English)

In Case C-256/01: Reference to the Court under Article 234
EC by the Court of Appeal (England and Wales) (Civil Division)

21.2.2004

EN

Official Journal of the European Union

C 47/5

for a preliminary ruling in the proceedings pending before that
court between Debra Allonby and Accrington & Rossendale
College, Education Lecturing Services, trading as Protocol
Professional, formerly Education Lecturing Services Secretary
of State for Education and Employment, on the interpretation
of Article 141 EC,
the Court, composed of: V. Skouris,
President, P. Jann, C.W.A. Timmermans, C. Gulmann and
J.N. Cunha Rodrigues (Presidents of Chambers), A. La Pergola,
J.-P. Puissochet, R. Schintgen, F. Macken, N. Colneric (Rappor-
teur) and S. von Bahr, Judges; L.A. Geelhoed, Advocate General;
L. Hewlett, Principal Administrator, for the Registrar, has given
a judgment on 13 January 2004, in which it has ruled:

1.

In circumstances such as those of
the main proceedings,
Article 141(1) EC must be interpreted as meaning that a
woman whose contract of employment with an undertaking has
not been renewed and who is immediately made available to
her previous employer through another undertaking to provide
the same services is not entitled to rely, vis-à-vis the intermediary
undertaking, on the principle of equal pay, using as a basis for
comparison the remuneration received for equal work or work
of the same value by a man employed by the woman’s previous
employer.

2. Article 141(1) EC must be interpreted as meaning that a
woman in circumstances such as those of the main proceedings
is not entitled to rely on the principle of equal pay in order to
secure entitlement to membership of an occupational pension
scheme for teachers set up by State legislation of which only
teachers with a contract of employment may become members,
using as a basis for comparison the remuneration, including
such a right of membership, received for equal work or work of
the same value by a man employed by the woman’s previous
employer.

3.

In the absence of any objective justification, the requirement,
imposed by State legislation, of being employed under a contract
of employment as a precondition for membership of a pension
scheme for teachers is not applicable where it is shown that,
among the teachers who are workers within the meaning of
Article 141(1) EC and fulfil all the other conditions for
membership, a much lower percentage of women than of men
is able to fulfil that condition. The formal classification of a
self-employed person under national law does not change the
fact that a person must be classified as a worker within the
meaning of that article if his independence is merely notional.

4. Article 141(1) EC must be interpreted as meaning that where
State legislation is at issue, the applicability of that provision
vis-à-vis an undertaking is not subject to the condition that the
worker concerned can be compared with a worker of the other
sex who is or has been employed by the same employer and who
has received higher pay for equal work or work of equal value.

(1) OJ C 289 of 13.10.2001.

JUDGMENT OF THE COURT

of 11 December 2003

in Case C-322/01 (Reference for a preliminary ruling
from the Landgericht Frankfurt am Main): Deutscher
Apothekerverband eV v 0800 DocMorris NV, Jacques
Waterval (1)

(Articles 28 EC and 30 EC — Directives 92/28/EEC and
2000/31/EC — National
legislation restricting internet
sales of medicinal products for human use by pharmacies
established in another Member State — Doctor’s prescription
required for supply — Prohibition on advertising the sale of
medicinal products by mail order)

(2004/C 47/08)

(Language of the case: German)

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

In Case C-322/01: Reference to the Court under Article 234
EC by the Landgericht Frankfurt am Main (Germany) for a
preliminary ruling in the proceedings pending before that
court between Deutscher Apothekerverband eV and 0800
DocMorris NV, Jacques Waterval, on the interpretation of
Articles 28 EC and 30 EC and of Article 1(3) and (4) and
Articles 2 and 3 of Council Directive 92/28/EEC of 31 March
1992 on the advertising of medicinal products for human use
(OJ 1992 L 113, p. 13), in conjunction with Directive 2000/
31/EC of the European Parliament and of the Council of 8 June
2000 on certain legal aspects of information society services,
in particular electronic commerce, in the internal market (‘the
Directive on electronic commerce’) (OJ 2000 L 178, p. 1),
the Court, composed of: V. Skouris, President, P.
Jann,
C.W.A. Timmermans, C. Gulmann, J.N. Cunha Rodrigues and
A. Rosas (Presidents of Chambers), D.A.O. Edward (Rappor-
teur), A. La Pergola, J.-P. Puissochet, R. Schintgen, F. Macken,
N. Colneric and S. von Bahr, Judges; C. Stix-Hackl, Advocate
General; H.A. Rühl, Principal Administrator, for the Registrar,
has given a judgment on 11 December 2003, in which it has
ruled:

1.

a) A national prohibition on the sale by mail order of
medicinal products the sale of which is restricted to
pharmacies in the Member State concerned, such as
the prohibition laid down in Paragraph 43(1) of the
Arzneimittelgesetz (Law on medicinal products) in the
version of 7 September 1998, is a measure having an
effect equivalent
to a quantitative restriction for the
purposes of Article 28 EC.

(b) Article 30 EC may be relied on to justify a national
prohibition on the sale by mail order of medicinal products
which may be sold only in pharmacies in the Member
State concerned in so far as the prohibition covers
medicinal products
to prescription. However,
Article 30 EC cannot be relied on to justify an absolute

subject