Case C-428/04: Judgment of the Court (Third Chamber) of  6 April 2006  — Commission of the European Communities v Republic of Austria (Failure to fulfil obligations — Directive 89/391/EEC — Measures to encourage improvements in the safety and health of workers at work — Failure to notify implementing measures — Incorrect or inadequate implementation — Articles 2(1), 7(3), 8(2), 11(2)(c) and (d), 13(2)(b) and 18)
Date: 2006-06-17
Institutions: Court of Justice
Subjects: Austria, European Commission, action for failure to fulfil an obligation, national implementing measure, occupational health, occupational safety

17.6.2006

EN

Official Journal of the European Union

C 143/13

Judgment of the Court (First Chamber) of 27 April 2006
(reference for a preliminary ruling from the Social
Security Commissioner) — Sarah Margaret Richards v
Secretary of State for Work and Pensions

of 65, when she would have been entitled to such a pension at the
age of 60 had she been held to be a woman as a matter of
national law.

(Case C-423/04) (1)

2. There is no need to limit the temporal effects of this judgment.

(Equal treatment for men and women in matters of social
security — Directive 79/7/EEC — Refusal to award a retire-
ment pension at the age of 60 to a transsexual who has
undergone male-to-female gender reassignment surgery)

(1) OJ C 300, 4.12.2004.

(2006/C 143/23)

Language of the case: English

Referring court

Social Security Commissioner

Parties to the main proceedings

Applicant: Sarah Margaret Richards

Defendant: Secretary of State for Work and Pensions

Re:

Reference for a preliminary ruling — Social Security Commis-
sioner — Interpretation of Articles 4 and 7 of Council Directive
79/7/EEC of 19 December 1978 on the progressive implemen-
tation of the principle of equal treatment for men and women
in matters of social security — Refusal to award a retirement
pension at the age of 60 to a male-to-female transsexual, the
age at which entitlement to such a pension would have arisen
if that person had been born female.

Operative part of the judgment

The Court:

Judgment of the Court (Third Chamber) of 6 April 2006
— Commission of the European Communities v Republic
of Austria

(Case C-428/04) (1)

(Failure to fulfil obligations — Directive 89/391/EEC —
Measures to encourage improvements in the safety and health
of workers at work — Failure to notify implementing
measures — Incorrect or inadequate implementation — Arti-
cles 2(1), 7(3), 8(2), 11(2)(c) and (d), 13(2)(b) and 18)

(2006/C 143/24)

Language of the case: German

Parties

Applicant: Commission of the European Communities (repre-
sented by: V. Kreuschitz, N. Yerrell and H. Kreppel, Agents)

Defendant: Republic of Austria (represented by: C. Pesendorfer,
Agent)

Re:

1. Article 4(1) 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 is to be
interpreted as precluding legislation which denies a person who, in
accordance with the conditions laid down by national
law, has
undergone male-to-female gender reassignment entitlement to a
retirement pension on the ground that she has not reached the age

Failure of a Member State to fulfil obligations — Incomplete
and incorrect transposition of Council Directive 89/391/EEC of
12 June 1989 on the introduction of measures to encourage
improvements in the safety and health of workers at work
(OJ 1989 L 183, p. 1)

C 143/14

EN

Official Journal of the European Union

17.6.2006

Operative part of the judgment

Re:

The Court:

1. Declares that, by failing to adopt, within the prescribed period, the
Law on the Rules governing Teachers in the Länder (Landeslehrer-
Dienstrechtsgesetz), contrary to the requirements of Article 18(1)
of Council Directive 89/391/EEC of 12 June 1989 on the intro-
duction of measures to encourage improvements in the safety and
health of workers at work, and by failing to implement, or to
implement in full, Article 2(1), in respect of compulsory education
teachers in the Tyrol, and Articles 7(3), 8(2), 11(2)(c) and (d)
and 13(2)(b) of that directive, the Republic of Austria has failed
to fulfil its obligations under those provisions of the Directive;

2. Dismisses the remainder of the action;

Reference for a preliminary ruling — Hoge Raad der Neder-
landen — Interpretation of Article 13A(1)(c) of Directive
77/388/EEC: Sixth Council Directive of 17 May 1977 on the
harmonisation of the laws of the Member States relating to
turnover taxes — Common system of value added tax: uniform
basis of assessment (OJ 1977 L 145, p. 1) — Exemption for
medical care provided in the exercise of the medical and para-
medical professions, as defined by the Member State concerned
— Activities carried out by a physiotherapist outside the scope
of the national medical and paramedical activities

3. Orders the Republic of Austria to bear its own costs and five
sixths of the costs of the Commission of the European Commu-
nities.

Operative part of the judgment

(1) OJ C 314, 18.12.2004.

Judgment of the Court (Third Chamber) of 27 April 2006
(references for a preliminary ruling from the Hoge Raad
der Nederlanden) — H.A. Solleveld (C-443/04) and J.E. van
den Hout-van Eijnsbergen (C-444/04) v Staatssecretaris
van Financiën

(Joined Cases C-443/04 and C-444/04) (1)

(Sixth VAT Directive — Article 13A(1)(c) — Exemptions —
Provision of medical care in the exercise of the medical and
paramedical professions — Therapeutic treatments given by
a physiotherapist and a psychotherapist — Definition by the
Member State concerned of paramedical professions —
Discretion — Limits)

(2006/C 143/25)

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Article 13A(1)(c) of Sixth Council Directive 77/388/EEC of 17 May
1977 on the harmonisation of the laws of the Member States relating
to turnover taxes — Common system of value added tax: uniform
basis of assessment must be interpreted as meaning that it confers on
the Member States the discretion to define the paramedical professions
and the medical care coming within the scope of such professions for
the purpose of the exemption laid down by that provision. However,
the Member States must, in the exercise of that discretion, comply
with the objective pursued by the said provision, which is to ensure
that the exemption applies solely to services provided by persons with
the required professional qualifications, and the principle of
fiscal
neutrality.

National legislation which excludes the profession of psychotherapist
from the definition of the paramedical professions is contrary to the
said objective and principle only to the extent that psychotherapeutic
treatments would, if carried out by psychiatrists, psychologists or any
other medical or paramedical profession, be exempt from value added
tax, whereas, carried out by psychotherapists, they can be regarded as
being of equivalent quality having regard to the professional qualifica-
tions of the latter, a matter which it is for the referring court to deter-
mine.

National legislation which excludes certain specific medical-care activ-
ities, such as treatments using disturbance field diagnostics, carried
out by physiotherapists from the definition of that paramedical profes-
sion is contrary to the said objective and principle only to the extent
that such treatments carried out in the context of the said activities
would, if carried out by doctors or dentists, be exempt from value
added tax, whereas, carried out by physiotherapists,
they can be
regarded as being of equivalent quality having regard to the profes-
sional qualifications of the latter, a matter which it is for the referring
court to determine.

Parties to the main proceedings

(1) OJ C 6, 8.1.2005.

Applicant: H.A. Solleveld, J.E. van den Hout-van Eijnsbergen

Defendant: Staatssecretaris van Financiën