Case C-537/07: Reference for a preliminary ruling from the Juzgado de lo Social No 30 (Madrid) lodged on 3 December 2007 — Evangelina Gómez-Limón Sánchez-Camacho v Instituto Nacional de la Seguridad Social (INSS), Tesorería General de la Seguridad Social (TGSS), Alcampo SA
Date: 2007-12-03
Institutions: Court of Justice
Subjects: EU law - national law, Spain, interpretation of the law, sexual discrimination, social-security benefit

C 64/16

EN

Official Journal of the European Union

8.3.2008

Form of order sought

— Annul the order of the Third Chamber of the Court of First
Instance of 11 September 2007 in Case T-28/07 (Fels-Werke
and Others v Commission of the European Communities) in so
far as it concerns the appellant;

— annul Article 1.2 of

the Commission's Decision of
29 November 2006 on the national plan for the allocation
of greenhouse gas emission allowances notified by Germany
pursuant to Directive 2003/87/EC of the European Parlia-
ment and of the Council (document number unpublished),
insofar as it declares the allocation guarantees in respect of
the first action period described in Chapter 6.2 of Germany's
national allocation plan under
the heading ‘Allocations
under Paragraph 8 of the ZuG 2007’ to be incompatible
with Directive 2003/87/EC;

— annul Article 2.2 of that decision insofar as it issues to the
Federal Republic of Germany instructions for the application
of the allocation guarantees in respect of the first action
period described in Chapter 6.2 of Germany's national allo-
cation plan under the heading ‘Allocations under Paragraph
8 of the ZuG 2007’ and in so doing also requires the appli-
cation of the same performance factor as for other compar-
able existing installations;

— in the alternative, annul the order referred to in the first
indent above and refer the case back to the Court of First
Instance;

— order the Commission to pay the costs of the proceedings.

Grounds of appeal and main arguments

By the contested order the Court of First Instance ruled that the
appellant was not
individually concerned and consequently
dismissed as inadmissible its action for annulment of parts of
the Commission's Decision of 29 November 2006 on the plan
notified by Germany for the allocation of greenhouse gas emis-
sion allowances.

In support of its appeal the appellant claims that the procedural
law which operates in its interests and material Community law,
namely the fourth paragraph of Article 230 EC, have been
infringed.

the Court of First

First,
Instance infringed the fundamental
rights to a fair hearing and to be heard. It reasoned its finding
that the appellant was not individually concerned primarily on
the basis that it did not prove that it was a member, as claimed,
of a closed class of operators and, in particular, on the basis that
it did not submit a list of operators which fall within the appli-
cation of Paragraph 8(1) of the ZUG 2007. However, at no
point in the proceedings did the Court of First Instance request

submission of a list of operators concerned by the allocation
guarantee. The relevance of the submission of such a list was
also not apparent to the applicant for any other reason since the
specific and closed nature of the circle of operators benefiting
from the allocation guarantee is already apparent
from the
mandatory legal structure of
the ZUG 2007, as submitted
before the Court of First Instance. Furthermore, in requesting
the submission of such a list, the Court of First Instance is
asking the appellant to do something which it is not actually in
a position to do.

Second, the Court of First Instance infringed the fourth para-
graph of Article 230 EC in that it wrongly found that the appli-
cant was not individually concerned. The group of persons, to
whom the contested decision applies,
is not only — in the
words of the Court — ‘more or less precisely’ determined, but is
also conclusively defined by operation of law as a result of past
events and it is not conceivable how it may be expanded. As
regards the operators concerned by the allocation guarantee in
Paragraph 8 of the ZuG 2007, the contested decision could,
furthermore, also be viewed as a bundle of individual decisions
since the continued application of the allocation guarantee has
been denied to each and every one of those operators.

Reference for a preliminary ruling from the Juzgado de lo
Social No 30 (Madrid) lodged on 3 December 2007 —
Evangelina Gómez-Limón Sánchez-Camacho v Instituto
Nacional de la Seguridad Social (INSS), Tesorería General
de la Seguridad Social (TGSS), Alcampo SA

(Case C-537/07)

(2008/C 64/25)

Language of the case: Spanish

Referring court

Juzgado de lo Social No 30, Madrid

Parties to the main proceedings

Applicant: Evangelina Gómez-Limón Sánchez-Camacho

Defendants:
Tesorería General de la Seguridad Social (TGSS), Alcampo SA

Instituto Nacional de la Seguridad Social

(INSS),

8.3.2008

EN

Official Journal of the European Union

C 64/17

Questions referred

1. Bearing in mind that the granting of parental leave must be
a measure intended to promote equality, in the manner and
to the extent freely fixed each Member State within the
minimum limits imposed by Directive 1996/34/EC (1), is it
possible that the enjoyment of that period of parental leave,
in the case of a reduction in the working day and in salary
by reason of taking care of children, should affect rights in
the process of being acquired by the worker, male or female,
taking such parental leave and may individuals rely before
the public institutions of a State on the principle of the
protection of rights acquired or in the process of being
acquired?

2. In particular, does the expression ‘rights acquired or in the
process of being acquired’ in Clause 2(6) of the framework
agreement on parental leave … include only rights related to
working conditions and affect only the contractual relation-
ship with the employer or, on the contrary, does it also affect
the maintenance of rights acquired or in the process of being
acquired in matters of social security, and is the requirement
for ‘continuity of the entitlements to social security cover
under the different schemes’ in Clause 2(8) of the framework
agreement on parental leave … satisfied by the formulation
under consideration and applied by the national authorities
and, if applicable, is the right to continuity of entitlements to
social security cover sufficiently certain and precise to be
relied upon before the public authorities of a Member State?

equal treatment and non-discrimination for men and women
in matters of social security (OJ 1979 L 6, p. 24) and is it
contrary to the requirements of equality and non-discrimina-
tion between men and women, in accordance with the tradi-
tion common to all the Member States, to the extent that
this principle must apply not only to conditions of employ-
ment but also to the public activity of social protection of
workers?

(1) Council Directive 96/34 EC of 3 June 1996 on the framework agree-
leave concluded by UNICE, CEEP and ETUC

ment on parental
(OJ 1996 L 145, p. 4).

(2) OJ 1979, L 6, p. 24; EE 05/02, p. 174.

Action brought on 5 December 2007 — Commission of
the European Communities v Federal Republic of Germany

(Case C-546/07)

(2008/C 64/26)

Language of the case: German

Parties

3. Are the provisions of Community law compatible with
national legislation which, during the period of reduction in
the working day by reason of parental
leave, reduces the
amount of invalidity pension to be paid in relation to what it
would have been before that leave and reduces the accrual
and consolidation of future benefits in proportion to the
reduction in working hours and in salary?

Applicant: Commission of the European Communities (repre-
sented by: E. Traversa and P. Dejmek, acting as Agents)

Defendant: Federal Republic of Germany

4. Given the duty of the national courts to interpret national
law in the light of the obligations imposed by the Directive,
in order to enable the objectives of the Community legisla-
tion to be achieved to the greatest possible extent, must that
requirement apply equally to the continuity of social security
entitlements during the period of parental leave and, specifi-
cally, in the circumstances of the case to a form of part-time
leave or reduction in the working day such as was used on
this occasion?

Form of order sought

— Declare that the Federal Republic of Germany has infringed
its obligations arising from Article 49 EC and the standstill
clause in Chapter 2 (Freedom of Movement for Persons),
Paragraph 13 of Annex XII (List referred to in Article 24 of
the Act of Accession of 16 April 2003) in that:

5. In the specific circumstances of the case, does the reduction
in the grant and accrual of social security entitlements
during the period of parental
leave constitute direct or
indirect discrimination contrary to the provisions of Direc-
tive 79/7/EEC (2) of 19 December 1978 on the principle of

it

(a) in its administrative practice,

interprets the term
‘Unternehmen der anderen Seite’ (undertakings from the
other side) in Paragraph 1(1) of the intergovernmental
agreement between Germany and Poland of 31 January
1990 on the posting of workers from Polish undertak-
ings to carry out works contracts as meaning ‘German
undertakings’ and