CELEX: C2004/047/19
Language: en
Date: 2004-02-21 00:00:00
Title: Case C-184/03: Reference for a preliminary ruling by the Landesgericht für Zivilrechtssachen Wien by order of that court of 15 April 2003 in the case of Helmut Fröschl against Republic of Austria

C 47/12                 EN                       Official Journal of the European Union                                             21.2.2004
8.    Are the provisions of the EC Treaty founding state liability             does not provide in the event of irregular legislative
      under the criteria laid down by the Court of Justice where               measures (Paragraph 1 AHG — ‘in enforcement of the
      rights directly conferred on EC citizens by the EC Treaty                Laws ...’), also to be classified as a damages claim?
      are grossly and culpably infringed to be interpreted as
      meaning that relevant restrictions on state liability under
      the national legal order, or also on the basis of decisions        (1) Brasserie du Pêcheur SA v Bundesrepublik Deutschland and The
      of national courts (in particular to the effect that claims            Queen v Secretary of State for Transport, ex parte: Factortame Ltd
      for compensation in regard to foreign policy measures                  and Others [1996] ECR I-1029.
      are precluded), are in any event unlawful?                         (2) Courage Ltd v Bernard Crehan [2001] ECR I-6297.
                                                                         Reference for a preliminary ruling by the Landesgericht
Reference for a preliminary ruling by the Landesgericht                  für Zivilrechtsachen Wien by order of that court of
für Zivilrechtssachen Wien by order of that court of                     7 April 2003 in the case of Monika Herbstrith against
15 April 2003 in the case of Helmut Fröschl against                                              Republic of Austria
                        Republic of Austria
                                                                                                   (Case C-229/03)
                         (Case C-184/03)
                                                                                                    (2004/C 47/20)
                          (2004/C 47/19)
                                                                         Reference has been made to the Court of Justice of the
                                                                         European Communities by order of the Landesgericht für
Reference has been made to the Court of Justice of the                   Zivilrechtsachen Wien (Regional civil court, Vienna) of 7 April
European Communities by order of the Landesgericht für                   2003, received at the Court Registry on 26 May 2003, for a
Zivilrechtssachen Wien (Regional Court for civil cases, Vienna)          preliminary ruling in the case of Monika Herbstrith against
of 15 April 2003, received at the Court Registry on 5 May                Republic of Austria on the following questions:
2003, for a preliminary ruling in the case of Helmut Fröschl
against Republic of Austria on the following questions:                  1.    Is EU law concerning equal treatment of men and women
                                                                               at work, in particular Directive 76/207/EEC (1), directly
                                                                               applicable, so that, as to amount, a claim for compen-
1.    In 1998 was it contrary to then directly applicable                      sation under Paragraph 15(1) of the B-GBG may be
      Community law, in particular Articles 12, 43 and 49 of                   obtained to the full extent of the damage occasioned,
      the EC Treaty, to interpret Paragraph 373c(3)(a), (b) and                irrespective of any limitation under Austrian domestic
      (c) of the Gewerbeordnung 1994 (Trade Code, GewO                         legislation or, in the absence of any such direct applica-
      1994), BGBl No 194, in the version of BGBl No I 63/                      bility of EU law, is there a claim founded on state liability
      1997, and the Regulation of the Federal Minister for                     for compensation to the full extent of the damage?
      Economic Affairs on the grant of exemption from the
      prescribed proof of competence for nationals of Member
      States of the Agreement on the European Economic Area,             2.    In the assessment of claims in respect of the foregoing is
      BGBl No 775/1993, in such a way that a national                          the rule concerning the burden of proof in Article 4 of
      photographer is prohibited from exercising his trade                     Council Directive 97/80/EC (2) directly applicable and, if
      because the qualifications set out there for proof of                    so,
      competence have been acquired by him in Austria and
      not in another State of the EEA?                                         (a)   does that apply on the basis that an expert opinion
                                                                                     within the meaning of Paragraph 22(1) of the B-
      If question 1 is answered in the affirmative:                                  GBG is sufficient for the purposes of attestation if it
                                                                                     appears conclusively and unreservedly that there is
      According to the settled case-law of the Court of Justice                      discrimination and it cannot be ruled out that such
      (e.g. Joined Cases C-46/93 and C-48/93 (1); Case C-453/                        discrimination arose for gender-related reasons, with
      99 (2)), is the payment of the costs which the plaintiff has                   the result that in the case giving rise to this reference
      to incur in domestic proceedings, including his recourse                       the opinion of the federal committee on equal
      to public law courts, in order to have a law contrary to                       treatment of 9 November 1998 satisfies this require-
      Community law set aside and for which national law                             ment