Judgment of the Court (First Chamber) of 10 March 2005 in Case C-196/02 (reference for a preliminary ruling from the Irinodikio Athinon): Vasiliki Nikoloudi v Organismos Tilepikinonion Ellados AE (Social policy — Male and female workers — Article 119 of the EC Treaty (Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC) — Directive 75/117/EEC — Equal pay — Directive 76/207/EEC — Equal treatment — Temporary part-time posts — Exclusion from appointment as an established member of staff — Calculation of length of service — Burden of proof)
Date: 2005-04-30
Institutions: Court of Justice
Subjects: collective agreement, contract of carriage, interpretation of the law, semi-skilled worker, sexual discrimination

30.4.2005

EN

Official Journal of the European Union

C 106/1

I

(Information)

COURT OF JUSTICE

COURT OF JUSTICE

JUDGMENT OF THE COURT

(First Chamber)

of 10 March 2005

in Case C-196/02 (reference for a preliminary ruling from
the Irinodikio Athinon): Vasiliki Nikoloudi v Organismos
Tilepikinonion Ellados AE (1)

(Social policy — Male and female workers — Article 119 of
the EC Treaty (Articles 117 to 120 of the EC Treaty have
been replaced by Articles 136 EC to 143 EC) — Directive
75/117/EEC — Equal pay — Directive 76/207/EEC — Equal
treatment — Temporary part-time posts — Exclusion from
appointment as an established member of staff — Calcula-
tion of length of service — Burden of proof)

(2005/C 106/01)

(Language of the case: Greek)

In Case C-196/02: reference for a preliminary ruling under
Article 234 EC from the Irinodikio Athinon (Greece), made by
decision of 13 May 2002, received at the Court on 27 May
2002, in the proceedings between Vasiliki Nikoloudi and Orga-
nismos Tilepikinonion Ellados AE — the Court (First Chamber),
composed of P.
the Chamber, A. Rosas
(Rapporteur), A. La Pergola, S. von Bahr and K. Schiemann,
Judges; C. Stix-Hackl, Advocate General; R. Grass, Registrar,
gave a judgment on 10 March 2005, the operative part of
which is as follows:

Jann, President of

1. Community law,

the EC Treaty
in particular Article 119 of
(Articles 117 to 120 of the EC Treaty have been replaced by Arti-
cles 136 EC to 143 EC) and 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, is to
be interpreted as meaning that the existence and application of a
provision such as Article 24a(2)(a) of the General Staff Regula-
tions of Organismos Tilepikinonion Ellados, under which only
female cleaners, and therefore only women, can be taken on under
a contract of indefinite duration for part-time work, do not consti-
tute, in themselves, direct discrimination on grounds of sex against

the subsequent exclusion of a possibility of
women. However,
appointment as an established member of staff by reference, osten-
sibly neutral as to the worker's sex, to a category of workers which,
under national rules having the force of law, is composed exclu-
sively of women constitutes direct discrimination on grounds of sex
within the meaning of Directive 76/207. In order for there to be
no direct discrimination on grounds of sex, the factor character-
ising the category to which the excluded worker belongs must be
such as to place that worker in a situation that is objectively
different, with regard to appointment as an established member of
staff, from the situation of those who are eligible to become estab-
lished.

2. Should the premiss that only part-time female cleaners have been
denied the possibility of appointment as an established member of
staff prove incorrect, and if a much higher percentage of women
than men has been affected by the provisions of the specific collec-
tive agreements of 2 November 1987 and 10 May 1991, the
exclusion, brought about by those agreements, of the appointment
of part-time temporary staff as established staff constitutes indirect
discrimination. Such a situation is contrary to Article 3 of Direc-
tive 76/207 unless the difference of
treatment between these
workers and those working full-time is justified by factors unre-
lated to any discrimination on grounds of sex.
is for the
national court to determine whether that is the case.

It

3. Where the total exclusion of part-time employment when calcu-
lating length of service affects a much higher percentage of female
workers than male workers, it constitutes indirect discrimination
on grounds of sex contrary to Directive 76/207, unless that exclu-
sion is attributable to factors which are objectively justified and are
unrelated to any discrimination on grounds of sex. It is for the
national court to determine whether that is the case. The propor-
tional counting of part-time employment when making that calcu-
lation is also contrary to Directive 76/207, unless the employer
establishes that it is justified by factors whose objectivity depends
in particular on the aim pursued by taking length of service into
account and, should it be a question of recognition of experience
the duties
acquired, on the relationship between the nature of
carried out and the experience which performance of those duties
brings after a certain number of hours of work have been
completed.

C 106/2

EN

Official Journal of the European Union

30.4.2005

4. Where employees plead that the principle of equal treatment has
been infringed to their detriment and establish facts from which it
may be presumed that there has been direct or indirect discrimina-
tion, Community law, in particular Council Directive 97/80/EC
of 15 December 1997 on the burden of proof in cases of discrimi-
nation based on sex, is to be interpreted as meaning that it shall
be for the respondent to prove that there has been no breach of
that principle.

(1) OJ C 169 of 13.07.2002.

ment on 1 March 2005, the operative part of which is as
follows:

The Convention of 27 September 1968 on Jurisdiction and the Enfor-
cement of Judgments in Civil and Commercial Matters, as amended
by the Convention of 9 October 1978 on the Accession of
the
Kingdom of Denmark, Ireland and the United Kingdom of Great
Britain and Northern Ireland, by the Convention of 25 October
1982 on the Accession of the Hellenic Republic and by the Conven-
tion of 26 May 1989 on the Accession of the Kingdom of Spain and
the Portuguese Republic, precludes a court of a Contracting State from
declining the jurisdiction conferred on it by Article 2 of that conven-
tion on the ground that a court of a non-Contracting State would be
a more appropriate forum for the trial of the action even if the juris-
diction of no other Contracting State is in issue or the proceedings
have no connecting factors to any other Contracting State.

JUDGMENT OF THE COURT

(1) OJ C 233 of 28.09.2002.

(Grand Chamber)

of 1 March 2005

in Case C- 281/02 reference for a preliminary ruling from
the Court of Appeal (England and Wales) Civil Division
(United Kingdom): Andrew Owusu v N.B. Jackson, trading
as ‘Villa Holidays Bal-Inn Villas’ and Others (1)

(Brussels Convention — Territorial scope of the Brussels
Convention — Article 2 — Jurisdiction — Accident which
occurred in a non–Contracting State — Personal injury —
Action brought in a Contracting State against a person domi-
ciled in that State and other defendants domiciled in a non–
Contracting State — Forum non conveniens — Incompat-
ibility with the Brussels Convention)

(2005/C 106/02)

(Language of the case: English)

In Case C-281/02, Reference for a preliminary ruling under the
Protocol of 3 June 1971 on the interpretation by the Court of
Justice of the Convention of 27 September 1968 on Jurisdic-
tion and the Enforcement of Judgments in Civil and Commer-
cial Matters by the Court of Appeal (England and Wales) Civil
Division (United Kingdom), by decision of 5 July 2002,
received at the Court on 31 July 2002,
in the proceedings
Andrew Owusu v N.B. Jackson, trading as ‘Villa Holidays Bal-
Inn Villas’, Mammee Bay Resorts Ltd, Mammee Bay Club Ltd,
The Enchanted Garden Resorts & Spa Ltd, Consulting Services
Ltd, Town & Country Resorts Ltd — the Court
(Grand
Chamber), composed of P. Jann, President of the First Chamber,
acting for the President, C.W.A. Timmermans and A. Rosas,
Puissochet,
Presidents of Chambers, C. Gulmann,
R. Schintgen (Rapporteur), N. Colneric, S. von Bahr and J.N.
Cunha Rodrigues,
Judges; P. Léger, Advocate General; L.
Hewlett, Principal Administrator, for the Registrar, gave a judg-

J.-P.

JUDGMENT OF THE COURT

(Second Chamber)

of 3 March 2005

in Case C-283/02: Italian Republic v Commission of the
European Communities (1)

(Action for annulment — Wine production — Regulation
(EC) No 753/2002 — description, designation, presentation
and protection of the products — Protection of additional
traditional terms — Erroneous classification of traditional
terms — Languages permitted to be used on labels — Prin-
ciple of equal treatment)

(2005/C 106/03)

(Language of the case: Italian)

In Case C-283/02 Italian Republic (Agent: I.M. Braguglia and
M. Fiorilli, lawyer) v Commission of the European Communities
(Agent: A. Alves Vieira, V. Di Bucci and M. Nolin) — action for
(Second
annulment under Article 230 EC — the Court
Chamber), composed of C.W.A. Timmermans, President of the
Chamber, C. Gulmann (Rapporteur), R. Schintgen, P. Kūris and
G. Arestis, Judges; D. Ruiz-Jarabo Colomer, Advocate General;
M. Múgica Arzamendi, Principal Administrator, for the Regis-
trar, gave a judgment on 3 March 2005, in which it:

1. Dismisses the action;