CELEX: C2002/169/48
Language: en
Date: 2002-07-13 00:00:00
Title: Case C-209/02: Action brought on 4 June 2002 by the Commission of the European Communities against the Republic of Austria

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.
 ---pagebreak--- C 169/28               EN                     Official Journal of the European Communities                                   13.7.2002
Pleas in law and main arguments                                          43/EEC were fulfilled. However, that possibility was not in any
                                                                         way taken into account by the competent authority.
In the context of the procedure for the approval of the planned
extension to the golf course in the municipality of Wörschach            (1) OJ 1979 L 103, p. 1.
im Ennstal, the Styrian authority responsible for nature                 (2) OJ 1992 L 206, p. 7.
protection carried out an appraisal of the compatibility of that
project with the conservation objectives laid down for that
area. In the Commission’s view, the expert’s report carried out
by the Institute may be regarded as an assessment of the
implications for the site within the meaning of Article 6(3) of
Council Directive 92/43/EEC on the conservation of natural                      Removal from the register of Case C-479/01 (1)
habitats and of wild fauna and flora. The project in question
gave rise to a potentially grave risk to the only instance, within                                (2002/C 169/49)
the inner Alpine region, of the breeding of the corncrake, a
species of bird threatened with extinction worldwide, within
the special protection area located in the Ennstal in accordance
                                                                         By order of 17 April 2002 the President of the Court of Justice
with Article 4 of Council Directive 79/409/EEC on the
                                                                         of the European Communities ordered the removal from the
conservation of wild birds. On the basis of the results of the
                                                                         register of Case C-479/01: Commission of the European
assessment made of the implications for the site, the project
                                                                         Communities v Kingdom of Belgium.
should not have been approved pursuant to Article 6(3) of
Directive 92/43/EEC. Thus, it was capable of being approved
only if the criteria laid down by Article 6(4) of Directive 92/          (1) OJ C 84 of 6.4.2002.