Case C-17/05: Judgment of the Court (Grand Chamber) of 3 October 2006 (reference for a preliminary ruling from the Court of Appeal (England and Wales) (Civil Division) (United Kingdom)) — B.F. Cadman v Health & Safety Executive (Social policy — Article 141 EC — Principle of equal pay for men and women — Length of service as a determinant of pay — Objective justification — Burden of proof)
Date: 2006-12-02
Institutions: Court of Justice
Subjects: United Kingdom, bonus payment, equal pay, gender equality, interpretation of the law, part-time employment, seniority, wage determination

C 294/10

EN

Official Journal of the European Union

2.12.2006

Operative part of the judgment

Operative part of the judgment

National rules whereby a Member State makes the granting of credit
on a commercial basis, on national territory, by a company estab-
lished in a non-member country subject to prior authorisation, and
which provide that such authorisation must be refused, in particular,
if that company does not have its central administration or a branch
in that territory, affect primarily the exercise of the freedom to provide
services within the meaning of Article 49 EC et seq. A company
established in a non-member country cannot rely on those provisions.

(1) OJ C 6, 08.01.2005.

Judgment of the Court (First Chamber) of 28 September
2006 (reference for a preliminary ruling from the Audi-
encia Provincial de Málaga — Spain) — Criminal proceed-
ings against G. Francesco Gasparini, José Ma L.A. Gasparini,
G. Costa Bozzo, Juan de Lucchi Calcagno, Francesco Mario
Gasparini, José A. Hormiga Marrero, Sindicatura Quiebra

1. The ne bis in idem principle, enshrined in Article 54 of

the
Convention implementing the Schengen Agreement of 14 June
1985 between the Governments of
the Benelux
Economic Union, the Federal Republic of Germany and the French
Republic on the gradual abolition of checks at
their common
borders, signed in Schengen on 19 June 1990, applies in respect
of a decision of a court of a Contracting State, made after criminal
proceedings have been brought, by which the accused is acquitted
finally because prosecution of the offence is time-barred.

the States of

2. That principle does not apply to persons other than those whose

trial has been finally disposed of in a Contracting State.

3. A criminal court of a Contracting State cannot hold goods to be
in free circulation in national territory solely because a criminal
court of another Contracting State has found, in relation to the
same goods, that prosecution for the offence of smuggling is time-
barred.

4. The marketing of goods in another Member State, after their
importation into the Member State where
the accused was
acquitted, constitutes conduct which may form part of the ‘same
acts’ within the meaning of Article 54 of the Convention.

(Case C-467/04) (1)

(1) OJ C 6, 08.01.2005.

(Convention implementing the Schengen Agreement —
Article 54 — Ne bis in idem principle — Scope — Acquittal
of the accused because their prosecution for the offence is
time-barred)

(2006/C 294/16)

Language of the case: Spanish

Referring court

Audiencia Provincial de Málaga

Parties in the main proceedings

Judgment of the Court (Grand Chamber) of 3 October
2006 (reference for a preliminary ruling from the Court of
(United
Appeal

(England and Wales)

(Civil Division)

Kingdom)) — B.F. Cadman v Health & Safety Executive

(Case C-17/05) (1)

(Social policy — Article 141 EC — Principle of equal pay for
men and women — Length of service as a determinant of pay
— Objective justification — Burden of proof)

(2006/C 294/17)

Language of the case: English

G. Francesco Gasparini, José Ma L.A. Gasparini, G. Costa Bozzo,
Juan de Lucchi Calcagno, Francesco Mario Gasparini, José A.
Hormiga Marrero, Sindicatura Quiebra

Re:

Referring court

Court of Appeal (Civil Division)

Reference for a preliminary ruling — Audiencia Provincial de
Málaga — Interpretation of Article 54 of
the Convention
implementing the Schengen Agreement of 14 June 1985
between the Governments of
the Benelux
Economic Union, the Federal Republic of Germany and the
French Republic on the gradual abolition of checks at their
common borders (OJ 2000 L 239, p. 19) — Ne bis in idem
principle — Scope — Interpretation of Article 24 EC — Scope

the States of

Parties to the main proceedings

Appellant: B.F. Cadman

Respondent: Health & Safety Executive

Intervener: Equal Opportunities Commission

2.12.2006

EN

Official Journal of the European Union

C 294/11

Re:

Parties to the main proceedings

Reference for a preliminary ruling — Court of Appeal (Civil
Division) — Interpretation of Article 141 EC — Equal pay for
men and women — Duration of employment used as a
criterion for determining pay and having a different effect
according to the sex of the worker

Applicant: ASM Lithography BV

Defendant:
kantoor Roermond

Inspecteur van de Belastingdienst-Douane Zuid/

Operative part of the judgment

Article 141 EC is to be interpreted as meaning that, where recourse
to the criterion of length of service as a determinant of pay leads to
disparities in pay, in respect of equal work or work of equal value,
between the men and women to be included in the comparison:

Re:

is appropriate

to attain the

— since, as a general rule, recourse to the criterion of

length of
legitimate objective of
service
rewarding experience acquired which enables
to
perform his duties better, the employer does not have to establish
specifically that recourse to that criterion is appropriate to attain
job, unless the worker
that objective as regards a particular
provides evidence capable of raising serious doubts in that regard;

the worker

— where a job classification system based on an evaluation of the
work to be carried out is used in determining pay, there is no
need to show that an individual worker has acquired experience
during the relevant period which has enabled him to perform his
duties better.

(1) OJ C 69, 19.03.2005.

Judgment of the Court (Third Chamber) of 5 October
2006 (reference for a preliminary ruling from the Gerecht-
shof te Amsterdam — Netherlands) — ASM Lithography
BV v Inspecteur van de Belastingdienst-Douane Zuid/
kantoor Roermond

(Case C-100/05) (1)

(Customs Code — Determination of the customs debt —
Import duties on compensating products determined by the
person concerned and confirmed by the customs authorities
under Article 121 of the Customs Code — Duties which can
the
be calculated in accordance with Article 122(c) of
Customs Code — Repayment of the amount levied in excess
on the basis of Article 236 of the Customs Code)

(2006/C 294/18)

Language of the case: Dutch

Referring court

Gerechtshof te Amsterdam

for

a preliminary

ruling — Gerechtshof

Reference
te
Amsterdam — Interpretation of Articles 121(1), 122(c), 214
and 236 of Council Regulation (EEC) No 2913/92 of 12
October 1992 establishing the Community Customs Code (OJ
1992 L 302, p. 1) — Compensating products regarded as
having been released for free circulation — Related customs
debt established on the basis of the taxation rules set out in
Article 122(c) of Regulation No 2913/92 — No prior and
express request by the party concerned — Acceptance of a
post-clearance request for a new calculation pursuant to Article
236 of Regulation No 2913/92

Operative part of the judgment

1. Article 122(c) of Council Regulation (EEC) No 2913/92 of 12
October 1992 establishing the Community Customs Code is to be
the time of determining the
interpreted as meaning that, at
amount of the customs debt resulting from the release for free
circulation of compensating products, unless the person concerned
has expressly made a request to that effect, the national customs
authorities are not bound to apply the rules of assessment relating
to the procedure for processing under customs control where the
import goods could have been placed under that procedure.

2. Article 236 of Regulation No 2913/92 is to be interpreted as
meaning that
the national customs authorities must allow a
request for repayment of import duties where it transpires that,
following an error by the person concerned and not through the
exercise of a choice, the amount of the customs debt has been
determined by applying Article 121 of that regulation and has
already been the subject of a communication to the person
concerned, even if that request entails a recalculation by those
authorities of the amount of the debt by applying Article 122(c)
of that regulation.

(1) OJ C 106, 30.04.2005.