CELEX: C2001/227/06
Language: en
Date: 2001-08-11 00:00:00
Title: Judgment of the Court (First Chamber) of 28 June 2001 in Case C-118/00 (reference for a preliminary ruling from the Cour du travail de Mons): Gervais Larsy v Institut national d'assurances sociales pour travailleurs indépendants (Inasti) (Regulations (EEC) Nos 1408/71 and 1248/92 — Retirement pensions — Anti-overlapping rules — Unenforceability pursuant to a judgment of the Court of Justice — Limitation of effects — Serious breach of Community law)

C 227/4                  EN                      Official Journal of the European Communities                                          11.8.2001
     by the employer in respect of their employment, constitutes pay                          JUDGMENT OF THE COURT
     within the scope of Article 119 of the EC Treaty and the
     Directive; equal pay must be ensured not only on the basis of
     an overall assessment of all the consideration granted to                                         (First Chamber)
     employees but also in the light of each aspect of pay taken in
     isolation;                                                                                        of 28 June 2001
                                                                            in Case C-118/00 (reference for a preliminary ruling from
—    the fact that a female employee who claims to be the victim of
                                                                            the Cour du travail de Mons): Gervais Larsy v Institut
     discrimination on grounds of sex and the male comparator are
                                                                            national d’assurances sociales pour travailleurs indépen-
     classified in the same job category under the collective agreement
                                                                                                        dants (Inasti) (1)
     governing their employment is not in itself sufficient for
     concluding that the two employees concerned are performing
     the same work or work to which equal value is attributed within        (Regulations (EEC) Nos 1408/71 and 1248/92 — Retire-
     the meaning of Article 119 of the EC Treaty and Article 1 of           ment pensions — Anti-overlapping rules — Unenforceability
     the Directive, since this fact is only one indication amongst          pursuant to a judgment of the Court of Justice — Limitation
     others that this criterion is met;                                             of effects — Serious breach of Community law)
                                                                                                       (2001/C 227/06)
—    as a general rule, it is for employees who consider themselves to
     be the victims of discrimination to prove that they are receiving
     lower pay than paid by the employer to a colleague of the other
     sex and that they are in fact performing the same work or work                              (Language of the case: French)
     of equal value, comparable to that performed by the chosen
     comparator; the employer may then not only dispute the fact
     that the conditions for the application of the principle of equal      (Provisional translation; the definitive translation will be published
     pay for men and women are met in the case but also put                                     in the European Court Reports)
     forward objective grounds, unrelated to any discrimination
     based on sex, to justify the difference in pay;
                                                                            In Case C-118/00: reference to the Court under Article 177 of
                                                                            the EC Treaty (now Article 234 EC) from the Cour du travail
                                                                            de Mons (Labour Court, Mons) Belgium for a preliminary
—    a difference in pay is capable of being justified by circumstances     ruling in the proceedings pending before that court between
     not taken into consideration under the collective agreement            Gervais Larsy and Institut national d’assurances sociales pour
     application to the employees concerned, provided that they             travailleurs indépendants (Inasti) — on the interpretation of
     constitute objective reasons unrelated to any discrimination           Article 95a of Regulation (EEC) No 1408/71 of the Council of
     based on sex and in conformity with the principle of pro-              14 June 1971 on the application of social security schemes to
     portionality;                                                          employed persons, to self-employed persons and to members
                                                                            of their families moving within the Community, as amended
                                                                            and updated by Council Regulation (EEC) No 2001/83 of
—    in the case of work paid at time rates, a difference in pay            2 June 1983 (OJ L 230, p. 6), as amended by Council
     awarded, at the time of their appointment, to two employees of         Regulation (EEC) No 1248/92 of 30 April 1992 (OJ 1992
     different sex for the same job or work of equal value cannot be        L 136, p. 7), and on the conditions governing a Member State’s
     justified by factors which become known only after the employees       liability for damage caused to individuals by breaches of
     concerned take up their duties and which can be assessed only          Community law — the Court (First Chamber), composed of:
     once the employment contract is being performed, such as a             M. Wathelet, President of the Chamber, P. Jann (Rapporteur)
     difference in the individual work capacity of the persons              and L. Sevón, Judges; P. Léger; Advocate General; H. von
     concerned or in the effectiveness of the work of a specific            Holstein, Deputy Registrar, for the Registrar, has given a
     employee compared with that of a colleague.                            judgment on 28 June 2001, in which it has ruled:
                                                                            1.    Article 95a(4), (5) and (6) of Regulation (EEC) No 1408/71
                                                                                  of the Council of 14 June 1971 on the application of social
                                                                                  security schemes to employed persons, to self-employed persons
                                                                                  and to members of their families moving within the Community
(1) OJ C 6 of 8.1.2000.                                                           as amended and updated by Council Regulation (EEC)
                                                                                  No 2001/83 of 2 June 1983, as amended by Council
                                                                                  Regulation (EEC) No 1248/92 of 30 April 1992, does not
                                                                                  apply to an application for review of a retirement pension, the
                                                                                  amount of which has been limited under an anti-overlapping
                                                                                  rule applicable in a Member State, on the ground that the
                                                                                  person receiving that pension has also been awarded a retirement
                                                                                  pension paid by the competent institution of another Member
                                                                                  State, where the application for review is based on provisions
                                                                                  other than those in Regulation No 1248/92.
 ---pagebreak--- 11.8.2001                EN                      Official Journal of the European Communities                                            C 227/5
2.    The application by the competent institution of a Member State        1.    Declares that by not implementing within the prescribed period
      of Article 95a(4), (5) and (6) of Regulation No 1408/71 to                  the laws, regulations and administrative measures necessary to
      a request for review of a retirement pension, thus limiting the             comply with Directive 97/36/EC of the European Parliament
      retroactivity of the review to the detriment of the person                  and of the Council of 30 June 1997 amending Council
      concerned, constitutes a serious breach of Community law if                 Directive 89/552/EEC on the coordination of certain provisions
      those provisions are not applicable to the application in question          laid down by law, regulation or administrative action in
      and if it follows from a judgment delivered by the Court of                 Member States concerning the pursuit of television broadcasting
      Justice before the decision by the competent institution that the           activities, the Grand Duchy of Luxembourg has failed to fulfil
      institution wrongly applied and anti-overlapping rule of that               its obligations under that directive;
      Member State, and where it cannot be inferred from that
      judgment that the retroactive effect of such a review could be        2.    Orders the Grand Duchy of Luxembourg to pay the costs.
      limited.
                                                                            (1) OJ C 163 of 10.6.2000.
( 1) OJ C 163 of 10.6.2000.
                                                                                               JUDGMENT OF THE COURT
                  JUDGMENT OF THE COURT                                                                (Sixth Chamber)
                         (Fourth Chamber)                                                                of 3 July 2001
                           of 21 June 2001                                  in Case C-378/98: Commission of the European Communi-
                                                                                               ties v Kingdom of Belgium (1)
in Case C-119/00: Commission of the European Communi-
             ties v Grand Duchy of Luxembourg (1)
                                                                            (Failure by a Member State to fulfil its obligations — State
                                                                            aid — Article 93(2), second subparagraph, of the EC Treaty
(Failure by a Member State to fulfil its obligations —                      (now Article 88(2), second subparagraph, EC) — Obligation
Failure to implement Directive 97/36/EC amending Directive                  to recover aid granted under the Maribel bis and Maribel ter
89/552/EEC — Coordination of certain provisions laid down                               schemes — Impossible to put into effect)
by law, regulation or administrative action in Member States
 concerning the pursuit of television broadcasting activities)
                                                                                                        (2001/C 227/08)
                           (2001/C 227/07)
                                                                                                  (Language of the case: French)
                     (Language of the case: French)
                                                                            (Provisional translation; the definitive translation will be published
(Provisional translation; the definitive translation will be published                           in the European Court Reports)
                    in the European Court Reports)
                                                                            In Case C-378/98: Commission of the European Communities
In Case C-119/00: Commission of the European Communities                    (Agent: G. Rozet) v Kingdom of Belgium (Agent: A. Snoecx,
(Agent: K. Banks) v Grand Duchy of Luxembourg (Agent:                       assisted by G. van Gerven and K. Coppenholle) — application
P. Steinmetz) — application for a declaration that, by failing              for a declaration that, by failing to adopt within the periods
to adopt the laws, regulations and administrative provisions                prescribed for under the Maribel bis/ter scheme which was
necessary to comply with Directive 97/36/EC of the European                 declared unlawful and incompatible with the common market
Parliament and of the Council of 30 June 1997 amending                      by Commission Decision 97/239/EC of 4 December 1996
Council Directive 89/552/EEC on the coordination of certain                 concerning aid granted by Belgium under the Maribel bis/ter
provisions laid down by law, regulation or administrative                   scheme (OJ 1997 L 95, p. 25), notified to it on 20 December
action in Member States concerning the pursuit of television                1996, the Kingdom of Belgium has failed to fulfil its obligations
broadcasting activities (OJ 1997 L 202, p. 60), and/or by                   under the fourth paragraph of Article 189 of the EC Treaty
failing to inform the Commission thereof, the Grand Duchy of                (now the fourth paragraph of Article 249 EC) and Articles 2
Luxembourg has failed to fulfil its obligations under that                  and 3 of the said decision — the Court (Sixth Chamber),
directive — the Court (Fourth Chamber), composed of: A. La                  composed of: C. Gulmann, President of the Chamber,
Pergola, President of the Chamber, D.A.O. Eward (Rapporteur)                J.-P. Puissochet, R. Schintgen, F. Macken and N. Colneric
and S. von Bahr, Judges; L.A. Geelhoed, Advocate General;                   (Rapporteur), Judges; A. Tizzano, Advocate General; D. Louter-
R. Grass, Registrar, has given a judgment on 21 June 2001, in               man-Hubeau, Head of Division, for the Registrar, has given a
which it:                                                                   judgment on 3 July 2001, in which it: