CELEX: C2002/169/47
Language: en
Date: 2002-07-13 00:00:00
Title: Case C-196/02: Reference for a preliminary ruling by the Irinodikio Athinon by judgment of that court of 13 May 2002 in the case of Vasiliki Nikoloudi against Organismos Tilepikinonion Elladas (OTE)

C 169/26               EN                      Official Journal of the European Communities                                        13.7.2002
      (b) incorrectly or incompletely transposing into Austri-                  (a)   not transposing into Austrian law the obligation to
            an law the obligation imposed on the competent                            separate waste laid down in Article 2(4) of Council
            authorities by Article 13 of the directive to undertake                   Directive 91/689/EEC(1) of 12 December 1991 on
            appropriate periodic inspections of establishments                        hazardous waste, as amended (2), and
            and undertakings which carry out the operations
            referred to in Articles 9 to 12 of the directive, the               (b) not fully transposing the obligation on the auth-
            Republic of Austria has failed to fulfil its obligations                  orities to carry out appropriate periodic inspections
            under Article 1(e) and (f) of the directive in conjunc-                   of producers of hazardous waste laid down in
            tion with Annexes II A and II B thereto and                               Article 4(1) of the directive, or the obligation on the
            Article 13 of the directive;                                              authorities to carry out inspections laid down in
                                                                                      Article 5(2), the Republic of Austria has failed to
2.    order the Republic of Austria to pay the costs.                                 fulfil its obligations under Articles 2(4), 4(1) and
                                                                                      5(2) of the directive;
                                                                          2.    order the Republic of Austria to pay the costs.
Pleas in law and main arguments
                                                                          Pleas in law and main arguments
The definitions of ‘disposal’ and ‘recovery’ laid down in                 There is no provision of Austrian law which clearly transposes
Article 1(e) and (f) in conjunction with Annexes II A and II B            the duty to separate mixed waste imposed by Article 2(4) of
of Directive 75/442/EEC are of central importance to the                  the directive.
uniform terminology of Community waste law and the
realisation of European waste policy. Under the legal pro-                In addition, the duty to carry out inspections prescribed by
visions in force in the Republic of Austria, terminology                  Austrian law relates only to those entities which collect and
inconsistent with that used in the directive is employed for the          handle hazardous waste, but does not extend to producers of
classification of operations which are regulated in Community             hazardous waste, as required by Directive 91/689/EEC. There
law by the definitions of ‘disposal’ and ‘recovery’.                      is also no comprehensive obligation on the competent auth-
                                                                          orities to carry out appropriate periodic inspections of estab-
                                                                          lishments and undertakings as required by Article 5(2) of the
In addition, the provisions in the Gewerbeordnung 1994 (the
                                                                          directive.
Austrian Trade Code of 1994) relating to industrial plants do
not adequately meet the requirements of Article 13 of the
directive, because those provisions do not provide that the               (1) OJ L 377, 31.12.1991, p. 20.
inspection must be carried out by the competent authorities.              (2) Council Directive 94/31/EC of 27 June 1994, OJ L 168, 2.7.1994,
                                                                              p. 28.
                                                                          Reference for a preliminary ruling by the Irinodikio
                                                                          Athinon by judgment of that court of 13 May 2002 in the
Action brought on 24 May 2002 by the Commission                           case of Vasiliki Nikoloudi against Organismos Tilepiki-
of the European Communities against the Republic of                                              nonion Elladas (OTE)
                              Austria
                                                                                                    (Case C-196/02)
                         (Case C-194/02)                                                            (2002/C 169/47)
                         (2002/C 169/46)
                                                                          Reference has been made to the Court of Justice of the
                                                                          European Communities by judgment of the Irinodikio Athinon
                                                                          (Small Claims Court, Athens) of 13 May 2002, received at the
                                                                          Court Registry on 27 May 2002, for a preliminary ruling in the
An action against the Republic of Austria was brought before              case of Vasiliki Nikoloudi against Organismos Tilepikinonion
the Court of Justice of the European Communities on 24 May                Elladas (OTE) on the following questions:
2002 by the Commission of the European Communities,
represented by Josef Christian Schieferer, of its Legal Service,          1.    Are the existence and operation of a rule, such as, in
with an address for service in Luxembourg at the office of Luis                 the present case, Article 24a(2a) of the General Staff
Escobar Guerrero, of its Legal Service, at Wagner Centre C 254,                 Regulations of the Organismos Tilepikinonion Elladas
Kirchberg, Luxembourg.                                                          (OTE), under which it is laid down that (only) women
                                                                                are taken on as cleaners on employment contracts of
                                                                                indefinite duration for part-time or intermittent employ-
The applicant claims that the Court should:                                     ment, consistent with the requirements which arise from
                                                                                Article 119 of the EEC Treaty and Directives 117/75 and
1.    declare that by:                                                          207/76?
 ---pagebreak--- 13.7.2002             EN                    Official Journal of the European Communities                                      C 169/27
     Under the case-law of the Court of Justice, given that                 On the basis that part-time employment exclusively or
     reduced working hours are tied to reduced pay can the                  mainly affected women, can the provisions under which
     rule at issue be interpreted as automatically constituting             part-time employment is entirely excluded (until 1 Janu-
     direct discrimination on grounds of sex, since it immedi-              ary 1996) or taken into account in proportion to full-
     ately and directly ties part-time employment to the sex of             time employment (from 1 January 1996) be interpreted,
     the (female) employees and thus places only women at a                 in the light also of the case-law of the Court of Justice, as
     disadvantage?                                                          introducing indirect discrimination on grounds of sex
                                                                            prohibited under the rules of Community law and,
                                                                            consequently, should the entire period of part-time
                                                                            employment be added to their length of service?
2.   Does the exclusion of temporary part-time cleaners                5.   If the Court of Justice answers Questions 1 to 4 in the
     employed for an indefinite duration from the benefits of               affirmative, in the sense that the contested rules and
     the specific collective agreement of 2 November 1987                   provisions of collective agreements in fact contravene
     between OTE and the Omospondia Ergazomenon OTE                         Community law, who bears the burden of proof when
     (OTE Workers’ Federation) with regard to their incorpor-               employees plead that the principle of equal treatment has
     ation within the regular staff (and indeed irrespective of             been infringed to their detriment?
     the duration of the part-time employment contract), as in
     the present case, on the ground that that specific collective
     agreement required at least two years’ full-time service
     infringe Article 119 of the EEC Treaty and the abovemen-
     tioned directives or another rule of Community law,
     as indirect discrimination on grounds of sex, on the
     assumption that those rules (notwithstanding their osten-
     sibly neutral character since no link is made to the
     employees’ sex) excepted exclusively female cleaners,
     because no men worked part-time under a contract of
     indefinite duration either in the General Services Sector         Action brought on 4 June 2002 by the Commission of the
     (to which cleaners belong) or in any other OTE staff                European Communities against the Republic of Austria
     sector?
                                                                                               (Case C-209/02)
                                                                                               (2002/C 169/48)
3.   When applying the specific collective agreement of
     10 May 1991 between OTE and the OTE Workers’
     Federation, OTE required temporary staff who were to
     become (probationary) members of the regular staff to
     have a contract of indefinite duration and to be employed         An action against the Republic of Austria was brought before
     full-time.                                                        the Court of Justice of the European Communities on 4 June
                                                                       2002 by the Commission of the European Communities,
                                                                       represented by Josef Christian Schieferer, of its Legal Service,
                                                                       with an address for service in Luxembourg at the office of Luis
     Does the exclusion of part-time cleaners (irrespective of         Escobar Guerrero, of its Legal Service, Wagner Centre C 254,
     the duration of their contract), as in the present case,          Kirchberg.
     constitute impermissible, indirect discrimination on
     grounds of sex falling within provisions of Community
     law (Article 119 and Directives 75/117 and 76/207),
     given that the specific collective agreement excepted             The applicant claims that the Court should:
     exclusively female cleaners because no men worked part-
     time for an indefinite duration in any OTE staff sector?
                                                                       (a)  declare that, as a result of the fact that the proposed
                                                                            extension of the golf course in the municipality of
                                                                            Wörschach in Styria has been approved despite the
                                                                            negative results of the assessment of its impact on the
                                                                            natural habitat of the corncrake (Crex crex) in the special
4.   Under Article 5(9) of the General Staff Regulations                    protection area established there pursuant to Article 4 of
     of OTE, as in force until 1 January 1996, part-time                    Directive 79/409/EEC (1), the Republic of Austria has
     employment was not included at all when calculating                    failed to comply with its obligations under Article 6(3)
     length of service for the purpose of determining better                and (4) in conjunction with Article 7 of Council Directive
     conditions of pay. Thereafter, from 1 January 1996, that               92/43/EEC of 21 May 1992 on the conservation of
     provision was amended by a specific collective agreement               natural habitats and of wild fauna and flora (2);
     and it was laid down that part-time employment is
     regarded as equivalent to half of an equal period of full-
     time employment.                                                  (b) order the Republic of Austria to pay the costs.