CELEX: C1998/278/32
Language: en
Date: 1998-09-05 00:00:00
Title: Reference for a preliminary ruling from the Arbetsdomstol by order of that court of 2 July 1998 in the case brought by Jämställdhetsombudsmannen Lena Svenaeus against Örebro Läns Landsting (Case C-236/98)

5.9.98               EN                 Official Journal of the European Communities                                C 278/19
Reference for a preliminary ruling from the Arbetsdomstol          5. In answering question 4, is significance to be attached
by order of that court of 2 July 1998 in the case brought              to the fact that the midwives, but not the clinical
by Jämställdhetsombudsmannen Lena Svenaeus against                     technician, perform shift work which, under the terms
                   Örebro Läns Landsting                               of the collective agreement, affords entitlement to
                      (Case C-236/98)                                  reduced working hours?
                       (98/C 278/32)                               (1) OJ L 45, 19.2.1975, p. 19.
Reference has been made to the Court of Justice of the
European Communities by an order of the Arbetsdomstol
of 2 July 1998, which was received at the Court Registry
on 6 July 1998, for a preliminary ruling in the case
brought by Jämställdhetsombudsmannen Lena Svenaeus                 Appeal brought on 6 July 1998 by Dorsch Consult
against Örebro Läns Landsting on the following questions:          Ingenieurgesellschaft mbH against the judgment delivered
                                                                   on 28 April 1998 by the Second Chamber of the Court of
                                                                   First Instance of the European Communities in Case
1. Under Article 119 of the Treaty of Rome and Council             T-184/95 Dorsch Consult Ingenieurgesellschaft mbH and
    Directive 75/117/EEC (1) on the approximation of the           Council of the European Union and Commission of the
    laws of the Member States relating to the application                             European Communities
    of the principle of equal pay for men and women,                                     (Case C-237/98 P)
    must compensation for unsocial working hours be
    included in the basis for a pay comparison in relation                                  (98/C 278/33)
    to a pay discrimination claim? What difference does it
    make that the compensation for unsocial working
    hours varies from month to month depending on the              An appeal against the judgment delivered on 28 April
    working schedule?                                              1998 by the Second Chamber of the Court of First
                                                                   Instance in Case T-184/95 between Dorsch Consult
                                                                   Ingenieurgesellschaft mbH and Council of the European
2. In answering question 1 should significance be                  Union and Commission of the European Communities was
    attached to the fact that as part of their tasks the           brought before the Court of Justice of the European
    midwives must regularly work hours which entitle               Communities on 6 July 1998 by Dorsch Consult
    them to compensation for working during unsocial               Ingenieurgesellschaft mbH, represented by Professor Dr
    working hours, whereas the clinical technician does            Karl M. Meessen, with an address for service in
    not regularly perform work during times which afford           Luxembourg at the Chambers of Patrick Kinsch, 100
    entitlement to such compensation?                              Boulevard de la PeÂtrusse, L-2320 Luxembourg.
3. In determining the question whether compensation                The appellant claims that the Court should:
    for unsocial working hours is to be included in
    the basis for a pay comparison in relation to a pay
    discrimination claim, must significance be attached to         Ð set aside the judgment of the Court of First Instance of
    the fact that, under national law, such compensation is            22 April 1998 in Case T-184/95 (1),
    included in basic pay for the purpose of determining
    pensions, sickness pay, damages and other pay related          Ð allow the application,
    compensation?
                                                                   Ð in the alternative, refer the case back to the Court of
4. Must a reduction in working time, representing the                  First Instance, and
    difference in standard working time for daytime work
    and work under a continuous three-shift regime, be
    taken into account when a pay comparison is made in            Ð order the defendants and respondents to pay the costs
    relation to a pay discrimination claim, in accordance              of the proceedings.
    with Article 119 of the Treaty of Rome and Council
    Directive 75/117/EEC on the approximation of the
    laws of the Member States relating to the application          Pleas in law and main arguments adduced in support:
    of the principle of equal pay for men and women? If
    the answer is in the affirmative: what significance does       (As to the existence of actual and certain damage)
    it have that under the collective agreement the lower
    standard working time applying under a continuous
    three-shift regime constitutes full-time working? If           Ð The Court's view that the facts found by it should not
    reduced working hours are to be given a particular                 be characterised as actual and certain damage' is
    value, is that value to be regarded as being comprised             wrong in law. If a correct characterisation were made,
    in the fixed monthly pay or as constituting special                the existence of such damage would follow from facts
    compensation which is to be included in the pay                    found in the judgment or in the minutes of the oral
    comparison?                                                        procedure,