CELEX: C1997/331/17
Language: en
Date: 1997-11-01 00:00:00
Title: Reference for a preliminary ruling by the Oberlandesgericht Wien by order of that court of 5 May 1997 in the case of Angestelltenbetriebsrat der Wiener Gebietskrankenkasse against Wiener Gebietskrankenkasse (Case C-309/97)

C 331 / 10              EN                    Official Journal of the European Communities                                        1 . 11 . 97
service in Luxembourg at the Chambers of G. Harles, 8­                   3 . Where a collective agreement provides that pay for
10 Rue Mathias Hardt, and the French Republic (Agents:                       the same work or for work of equal value is
C. de Salins and R Martinet) — the Court ( First Chamber)                    to vary according to the employee's professional
composed of: L. Sevon, President of the Chamber, D. A. O.                    qualifications, are the groups to be compared for the
Edward and M. Wathelet ( Rapporteur), Judges; G.                             purpose of determining whether a measure gives rise
Tesauro, Advocate General; R. Grass, Registrar, has made                     to discrimination to be defined by reference to
an order on 16 September 1997, the operative part of
which is at follows :
                                                                             ( a ) the persons actually employed in the undertaking,
1 . The appeal is dismissed;
                                                                             ( b ) the employees covered by the collective agreement,
                                                                                   or
2 . The appellant is ordered to pay the costs.
                                                                             (c ) the persons qualified to pursue that occupation ?
(') OJ C 133,4 . 5 . 1996 .
                                                                         4 . In such a case ( Questions 2 and 3 ) is the relevant
                                                                             proportion of men to women that in the
                                                                             disadvantaged group only, or that in both groups ?
Reference        for     a      preliminary    ruling     by     the
Oberlandesgericht Wien by order of that court of 5 May                   5 . Where the activities which both groups have actually
1997 in the case of Angestelltenbetriebsrat der Wiener                       been called on to perform represent only a fraction of
 Gebietskrankenkasse against Wiener Gebietskrankenkasse                      the duties covered by the relevant professional
                           ( Case C-309/97                                   qualification, is the relevant group
                             ( 97/C 331 /17)
                                                                             ( a ) all persons whose qualifications cover such duties
                                                                                   ( all medical specialists and all psychologists ) in the
Reference has been made to the Court of Justice                                    relevant context ( the establishment, the collective
of the European Communities by order of the                                        agreement — see Question 3 ),
Oberlandesgericht ( Higher Regional Court), Vienna, of
5 May 1997, received at the Court Registry on
4 September 1997, for a preliminary ruling in the case of                    ( b ) all those specifically qualified for this type of work
Angestelltenbetriebsrat der Wiener Gebietskrankenkasse v.                          ( doctors specialized in psychiatry . . .), or
Wiener Gebietskrankenkasse on the following questions:
                                                                             (c ) only those who in practice perform these duties ?
1 . Do the terms 'equal work' or 'the same job' apply for
     the purposes of Article 119 of the EC Treaty or
     Directive 75/117/EEC ( J ) where the same duties are                6 . Where employees are assigned to the same duties, is a
     performed over a considerable length of time                            difference in their professional training to be regarded
     ( several salary periods ) by employees with different                  as a factor capable of justifying discriminatory rates of
     professional qualifications ?                                           pay ? Are more extensive professional qualifications to
                                                                             be regarded, independently of the duties actually
                                                                             performed, as an objective factor justifying
2. Is it material, in determining whether discrimination                     discriminatory rates of pay ?
     for the purposes of Article 119 of the EC Treaty or
     Directive 75/119/EEC exists, that:
                                                                             ( a ) Is the decisive factor therefore whether the higher­
     ( a ) pay is determined exclusively by the parties to the                     paid group of employees in the undertaking
           employment contract, who may decide whether                             concerned can also be considered for other duties,
                                                                                   or
           to have the terms of collective agreements
           incorporated therein,
                                                                             ( b ) is actual proof of performance of other duties
     ( b ) general    rules      (collective agreements )    fix   a               essential ?
           mandatory minimum level of pay for every
           employee in a particular field or
                                                                             Is account to be taken of the fact that the relevant
     (c ) pay is governed unconditionally and definitively by                rules of the collective agreement provide for protection
           collective agreements ?                                           against arbitrary dismissal ?
 ---pagebreak--- 1 . 11 . 97              EN                     Official Journal of the European Communities                                        C 331 /11
7. Does it follow from Article 222 of the EC Treaty, or                    the European Communities in Case T-63/96 between
     from the application by analogy of Article 174                        Augusto Fichtner and the Commission of the European
     thereof, that any right to pay in accordance with                     Communities was brought before the Court of Justice of
     another collective agreement ( between the same                       the European Communities on 8 September 1997 by
     parties ) which may be inferred from Article 119 of the               Augusto Fichtner, represented by Vincenzo Salvatore,
     EC Treaty or from Directive 75/117/EEC exists only                    Avvocato in Pavia (Italy ).
     from the date of a finding to that effect by the Court
     of Justice ? •
                                                                           The appellant claims that the Court should           set aside the
                                                                           order of the Court of First Instance ( Fourth        Chamber) of
(') OJ L 45 , 19 . 2 . 1975 , p . 19 .
                                                                           9 July 1997 in Case T-63/96 H, notified to          the applicant
                                                                           on 11 July 1997, dismissing his application,        and refer the
                                                                           case back to the Court of First Instance .
                                                                           Pleas in law and main arguments adduced in support:
Reference for a preliminary ruling from the Diikitiko
Protodikio Piraeus ( 8th Chamber), by a decision of 30 June
                                                                           Proceedings before the Court of First Instance were
1997, in the case of Royal Bank of Scotland PLC v.
                                Greek State                                brought in good time and in accordance with the proper
                                                                           procedure, by means of an application lodged on 10 May
                            Case C-3 11/97 )                               1996, against the decision adopted on 5 February 1996,
                                                                           which was notified to the applicant through official
                             ( 97/C 331/18 )
                                                                           channels on 20 February 1996 .
Reference has been made to the Court of Justice of the                     That is indisputably the measure concluding the
European Communities by a decision of 30 June 1997 of                      complaints      procedure.           The   character     of the
the Diikitiko Protodikio (Administrative Court of First                    communication from the Director-General of the Rights
Instance ) Piraeus ( 8th Chamber), which was received at the               and Obligations Directorate of DG IX is quite clear and it
Court Registry on 8 September 1997, for a preliminary                      cannot be regarded merely as an express reply, still less as
ruling in the case of Royal Bank of Scotland PLC v. Greek                  a confirmatory act.
State on the following question:
                                                                           In the alternative, the applicant asks the Court, in the
Is Article 109 ( 1 ) ( a ) of the Greek Income Tax Code                    event that his pleas in law are rejected, to acknowledge
contained in Law 2238/1994 ( FEK ( Greek Official                          that his error was excusable. As was pointed out in the
Gazette) 151 A), which imposes a different tax charge                      grounds of the order under appeal, the Court of First
unfavourable to foreign companies by applying a 40 % tax                   Instance has consistently held that failure to comply with
rate on their taxable income, as against domestic                          the time-limits set by Article 91 ( 3 ) of the Staff
companies to which a tax rate of 35% is applied,                           Regulations does not prevent an application from being
permissible under Community law and, in particular, is it                  admissible where the applicant has committed a justifiable
in compliance with Articles 7 and 52 of the Treaty; in                     error.
other words, is the Greek State entitled to impose the said
differential tax treatment which is unfavourable to foreign
companies ?                                                                 H OJ C 233 , 10 . 8 . 1996, p . 9 . ■
Appeal brought on 8 September 1997 by Augusto                               Action brought on 10 September 1997 by the Commission
Fichtner, an official of the Commission of the European                     of the European Communities against the Italian Republic
 Communities, residing at Besozzo, Varese (Italy), against                                          ( Case C-3 13/97)
the order made on 9 July 1997 by the Fourth Chamber of
 the Court of First Instance of the European Communities                                              ( 97/C 331 /20)
 in Case T-63/96 between Augusto Fichtner and the
           Commission of the European Communities
                          ( Case C-3 12/97 P)                               An action against the Italian Republic was brought before
                                                                            the Court of Justice of the European Communities on
                              ( 97/C 331 / 19 )                             10 September 1997 by the Commission of the European
                                                                            Communities, represented by Laura Pignataro, of its Legal
                                                                            Service, acting as Agent, with an address for service in
 An appeal against the order made on 9 July 1997 by the                     Luxembourg at the offices of Carlos Gomez de la Cruz,
 Fourth     Chamber of the             Court of First Instance     of       Wagner Centre, Kirchberg.