Case C-94/07: Judgment of the Court (Fifth Chamber) of 17 July 2008 (reference for a preliminary ruling from the Arbeitsgericht Bonn — Germany) — Andrea Raccanelli v Max-Planck-Gesellschaft zur Förderung der Wissenschaften eV (Article 39 EC — Concept of worker — Non-governmental organisation operating in the public interest — Doctoral grant — Employment contract — Conditions)
Date: 2008-07-17
Institutions: Court of Justice
Subjects: discrimination on the basis of nationality, free movement of workers, interpretation of the law, labour law, worker (EU)

C 223/12

EN

Official Journal of the European Union

30.8.2008

Operative part of the judgment

1. The fact that an employer states publicly that it will not recruit
employees of a certain ethnic or racial origin constitutes direct
discrimination in respect of recruitment within the meaning of
Article 2(2)(a) of Council Directive 2000/43/EC of 29 June
2000 implementing the principle of equal
treatment between
persons irrespective of racial or ethnic origin, such statements being
likely strongly to dissuade certain candidates from submitting their
candidature and, accordingly, to hinder their access to the labour
market.

2. Public statements by which an employer lets it be known that
under its recruitment policy it will not recruit any employees of a
certain ethnic or racial origin are sufficient for a presumption of the
existence of a recruitment policy which is directly discriminatory
within the meaning of Article 8(1) of Directive 2000/43. It is
then for that employer to prove that there was no breach of the
principle of equal treatment. It can do so by showing that the
undertaking's actual recruitment practice does not correspond to
those statements. It is for the national court to verify that the facts
alleged are established and to assess the sufficiency of the evidence
submitted in support of the employer's contentions that it has not
breached the principle of equal treatment.

Other parties to the proceedings: Commission of the European
Communities (represented by: V. Joris and D. Martin, acting as
Agents), Council of
the European Union (represented by:
M. Arpio Santacruz and I. Šulce, acting as Agents)

Re:

Extended Composition)

the Court of First
Appeal brought against the judgment of
Instance
of
(Second Chamber,
29 November 2006 in Case T-135/05 Campoli v Commission, by
which the Court dismissed as partially inadmissible and partially
unfounded the action for annulment of the appellant's pension
payslips from May to July 2004, in as much as they applied for
the first time a weighting calculated in an allegedly unlawful
manner on the basis of the average cost of living in the appel-
lant's country of residence, rather than, as previously, in relation
to the cost of living in the capital of that country — Effect of
the entry into force of the new Staff Regulations of Officials on
the system of weighting — Transitional system for officials who
retired before 1 April 2004 — Method of calculating weighting
and respect for the principle of the equality of treatment —
Obligation to state reasons

3. Article 15 of Directive 2000/43 requires that rules on sanctions
applicable to breaches of national provisions adopted in order to
transpose that directive must be effective, proportionate and dissua-
sive, even where there is no identifiable victim.

Operative part of the judgment

The Court:

(1) OJ C 82, 14.4.2007.

1. Dismisses the principal appeal and the cross-appeal.

2. Orders the parties to bear their own costs.

(1) OJ C 117, 26.5.2007.

Judgment of the Court (Second Chamber) of 17 July 2008
the European
— Franco Campoli v Commission of

Communities, Council of the European Union

(Case C-71/07 P) (1)

(Appeal — Officials — Remuneration — Pension — Applica-
tion of the correction coefficient calculated on the basis of the
average cost of living in the country of residence — Transi-
tional arrangements established by the Regulation amending
the Staff Regulations — Objection of illegality)

(2008/C 223/18)

Language of the case: French

Judgment of the Court (Fifth Chamber) of 17 July 2008
(reference for a preliminary ruling from the Arbeitsgericht
Bonn — Germany) — Andrea
v
Max-Planck-Gesellschaft zur Förderung der Wissenschaften
eV

Raccanelli

(Case C-94/07) (1)

(Article 39 EC — Concept of ‘worker’ — Non-governmental
organisation operating in the public interest — Doctoral grant
— Employment contract — Conditions)

(2008/C 223/19)

Language of the case: German

Parties

Appellant: Franco Campoli
L. Levi and S. Rodrigues, avocats)

(represented by: G. Vandersanden,

Referring court

Arbeitsgericht Bonn

30.8.2008

EN

Official Journal of the European Union

C 223/13

Parties to the main proceedings

Applicant: Andrea Raccanelli

Defendant: Max-Planck-Gesellschaft
Wissenschaften eV

zur

Förderung

der

Re:

Preliminary ruling — Arbeitsgericht Bonn — Interpretation of
Article 7 of Regulation (EEC) No 1612/68 of the Council of
15 October 1968 on freedom of movement for workers within
the Community (OJ English Special Edition 1968(II), p. 475) —
Capacity as a worker of a doctoral student engaged as a grant
recipient by a non-profit-making association established under
private law in another Member State which offers most national
doctoral students the possibility of concluding a contract of
employment — Need to make it possible for doctoral students
who are nationals of
the other Member States to choose
between a grant and a contract of employment — Concept of
‘worker’

Operative part of the judgment

a

of

the

basis

grant

contract

concluded with

1. A researcher in a similar situation to that of the applicant in the
main proceedings, that is, a researcher preparing a doctoral thesis
on
the
Max-Planck-Gesellschaft zur Förderung der Wissenschaften eV,
must be regarded as a worker within the meaning of Article 39 EC
only if his activities are performed for a certain period of time
under the direction of an institute forming part of that association
and if, in return for those activities, he receives remuneration. It is
for the referring court to undertake the necessary verification of the
facts in order to establish whether such is the case in the dispute
before it.

2. A private-law association, such as the Max-Planck-Gesellschaft zur
Förderung der Wissenschaften eV, must observe the principle of
non-discrimination in relation to workers within the meaning of
Article 39 EC. It is for the referring court to establish whether, in
circumstances such as those of the case in the main proceedings,
there has been inequality in the treatment of domestic and foreign
doctoral students.

3. In the event that the applicant in the main proceedings is justified
in relying on damage caused by the discrimination to which he has
been subject, it is for the referring court to assess, in the light of
the national
legislation applicable in relation to non-contractual
liability, the nature of the compensation which he would be entitled
to claim.

(1) OJ C 117, 26.5.2007.

a

for

Judgment of the Court (Grand Chamber) of 17 July 2008
(references
from the
preliminary
Bundesverwaltungsgericht — Germany) — Arcor AG &
Co. KG (C-152/07), Communication Services TELE2 GmbH
(C-153/07), Firma 01051 Telekom GmbH (C-154/07) v
Bundesrepublik Deutschland

ruling

(Joined Cases C-152/07 to C-154/07) (1)

(Telecommunications — Networks and services — Tariff reba-
lancing — Article 4c of Directive 90/388/EEC — Article 7(2)
of Directive 97/33/EC — Article 12(7) of Directive 98/61/EC
— Regulatory authority — Direct effect of directives —
Triangular situation)

(2008/C 223/20)

Language of the case: German

Referring court

Bundesverwaltungsgericht

Parties to the main proceedings

Applicants: Arcor AG & Co. KG (C-152/07), Communication
Services TELE2 GmbH (C-153/07), Firma 01051 Telekom
GmbH (C-154/07)

Defendant: Bundesrepublik Deutschland

Intervening Party: Deutsche Telekom AG

Re:

Reference for a preliminary ruling — Bundesverwaltungsgericht
— Interpretation of Commission Directive 90/388/EEC of
28 June 1990 on competition in the markets for telecommuni-
cations services (OJ 1990 L 192, p. 10) and Directive 97/33/EC
of the European Parliament and of the Council of 30 June 1997
on interconnection in telecommunications with regard to
ensuring universal service and interoperability through applica-
the principles of Open Network Provision (ONP)
tion of
(OJ 1997 L 199, p. 32) — National legislation prescribing, in
addition to interconnection charges calculated on the basis of
the cost of
the service, a financial contribution from other
operators to cover the ‘connection cost deficit’ incurred by the
incumbent operator as a result of providing the local loop —
Obligation of the Member States to remove obstacles to the
rebalancing of tariffs by former telecommunications organisa-
tions following the interconnection of networks — Ability of an
individual to rely on the direct effect of a directive before the
courts of a Member State in order to secure the annulment of
an administrative decision laying down a financial obligation in
favour of another individual