CELEX: C1997/357/29
Language: en
Date: 1997-11-22 00:00:00
Title: Reference for preliminary ruling by the Arbeidshof te Antwerpen by judgment of that court of 17 September 1997 in the case of Rijksdienst voor Pensioenen against Wim Westenborg (Case C-335/97)

C 357/ 16                  EN                  Official Journal of the European Communities                                 22 . 11 . 97
2 . Is there a breach of Article 119 of the EC Treaty,                    The applicant claims that the Court should:
      Article 11 ( 2 ) of Directive 92/85/EEC and clause 2 ( 6 )
      of the Annex to Directive 96/34/EC (2) ( which is yet to
      be transposed ) if an employer wholly excludes women                — order the Comune di Montorio al Vomano to refund :
      who are on parenting leave (Erziehungsurlaub) at the
      time of payment of the Christmas bonus from receipt                      — Lit 455 200 000, together with Lit 650 885 399 by
      of the bonus and does not take into account work
                                                                                   way of interest, in respect of the financing of
      performed and periods completed for the protection                           contract 147,
      of mothers (in which they were prohibited from
      working)?
                                                                               — Lit 158 400 000, together with Lit 243 672 000 by
                                                                                   way of interest, in respect of the financing of
                                                                                   contract 149 ,
3 . If Question 2 is to be answered in the affirmative :
                                                                               that is to say, the total §um of Lit 1 508 157 399
                                                                               together with further interest as from 31 August 1997
      Is there a breach of Article 119 of the EC Treaty,                       until the day on which repayment is fully effected,
      Article 11 ( 2 ) ( b ) of Directive 92/85/EEC and clause 2               following rescission of the two contracts referred to
       ( 6 ) of the Annex to Directive 96/34/EC if, when                       above,
      awarding a Christmas bonus to a woman who is on
      parenting leave, an employer takes into account the
      following periods by way of pro rata reduction:                     — order the Comune di Montorio al Vomano to pay the
                                                                               Commission Lit 50 000 000 by way of damages or
                                                                               such sum as may be considered due compensation for
      — periods of parenting leave;                                            the damage suffered by reason of its faillure to
                                                                               perform its obligations,
      — periods for the protection of mothers ( in which she              — order the Comune di Montorio al Vomano to pay the
             was prohibited from working)?                                     costs .
                                                                          Pleas in law and main arguments adduced in support:
The Arbeitsgericht requests the Court of Justice to give a
ruling, in the context of the questions referred by it, also
on the scope of clause 2 ( 6 ) of the Annex to Directive 96/              The object of this action, which is based on an arbitration
34/EC .                                                                   clause, is to recover financial assistance which the
                                                                          Commission granted the defendant so that it could
                                                                          construct ( a ) a 225 kW combined wind/diesel energy
(') OJ L 348 , 28 . 11 . 1992, p. 1 .                                     system with optimum power distribution ( contract No WE/
( 2 ) OJ L 145 , 19 . 6 . 1996 , p. 4 .
                                                                          147-85 ) and ( b ) a hydroelectric generator plant combined
                                                                          with a wind/diesel energy system ( contract No HY/149­
                                                                          85 ). The Commission decided to withdraw from the
                                                                          contracts, drawn up between the parties in accordance
                                                                          with Italian law, on account of the defendant's failure to
                                                                          perform its obligations thereunder.
Action brought on 24 September 1997 by the Commission
of the European Communities against the Comune di
                          Montorio al Vomano
                             ( Case C-334/97)
                                                                          Reference for preliminary ruling by the Arbeidshof te Ant­
                               ( 97/C 357/28 )                            werpen by judgment of that court of 17 September 1997
                                                                          in the case of Rijksdienst voor Pensioenen against Wim
                                                                                                     Westenborg
                                                                                                  Case C-335 /97 )
An action against the Comune di Montorio al Vomano
was brought before the Court of Justice of the European                                            ( 97/C 357/29
Communities on 24 September 1997 by the Commission
of the European Communities, represented by Paolo
Stancanelli of its Legal Service, assisted by Alberto Dal                 Reference has been made to the Court of Justice of the
Ferro, Avvocato, acting as Agents, with an address for                    European Communities by judgment of the Arbeidshof
service in Luxembourg at the office of Carlos Gomez de la                 (Higher Labour Court), Antwerp, of 17 September 1997,
Cruz, Wagner Centre, rue Alcide de Gasperi .                              received at the Court Registry on 26 September 1997, for
 ---pagebreak--- 22 . 11 . 97             EN                  Official Journal of the European Communities                                  C 357/ 17
a preliminary ruling in the case of Rijksdienst voor Pensi­                  nen and the case-law of the Court of Justice, is it
oenen against Wim Westenborg in the following terms:                        compatible with Community law, more particularly
                                                                            Articles 5 , 48 and 51 of the Treaty, to take the view
                                                                             that the national courts may not disapply express,
                                                                             binding provisions of national law in order to
1 . Requests the Court of Justice of the European                            eliminate the adverse effects :
     Communities to give a preliminary ruling on
     the following questions, on the basis of the
     aforementioned provisions and any other provisions                     — of the application of the rUle of national law to
     which it may consider to apply in this case:                                migrant workers who have exercised their right to
                                                                                 free movement,
     Is it compatible with Community law — in particular                    — of the lack of coordination between social security
                                                                                 schemes of different Member States ?
     Articles 5, 48 and 51 of the Treaty of 25 March 1957
     establishing the European Economic Community and,
     more specifically, the principles of free movement of
     workers and cooperation in good faith between the
     competent authorities — to take the view that the
     relevant Belgian legislation may not be disapplied by a
     national court which concludes that an applicable
                                                                        Action brought on 26 September 1997 by the Commission
     national provision requiring a migrant worker's
     pension to be reduced — such as Article 3 ( 1 ) of the             of the European Communities against the Italian Republic
     Belgian Law of 20 July 1990 which requires a lower                                        ( Case C-336/97 )
     pension to be awarded ( at the 60% rate for a single
                                                                                                 ( 97/C 357/30 )
     person and not the 75 % household rate ) if the
     migrant worker's spouse receives a pension or benefit
     equivalent thereto under the legislation of a foreign
     country — and considers that it is impossible to                   An action against the Italian Republic was brought before
     interpret that national rule in such a way as to                   the Court of Justice on 26 September 1997 by the
     eliminate the unforeseen adverse effects of the lack of            Commission of the European Communities, represented
     coordination between social security schemes in the                by Paolo Stancanelli, of its Legal Service, assisted by
     interests of free movement of workers or holds that                Claudio Tesauro, of the Naples Bar, acting as Agents, with
     the application of that rule in the case in point                  an address for service in Luxembourg at the office of
     constitutes an obstacle to free movement of workers ?              Carlos Gomez de la Cruz, Wagner Centre, Kirchberg.
                                                                        The applicant claims that the Court should:
2 . Requests the Court of Justice of the European
     Communities to give an interpretation of the scope of
                                                                        — declare that :
     its judgment in Case C-165/91 Van Munster v. Rijks­
     dienst voor Pensioenen in the light of those rules of
     European law:                                                           — by not ensuring that emergency plans are drawn
                                                                                 up for action outside establishments whose
                                                                                 industrial activity has been notified in accordance
      ( a ) Does the reasoning set out in paragraph 21 to 31                     with Article 5 of Directive 82/501 /EEC ('), in
            of that judgment in respect of question 2 relate to                  breach of the third indent of Article 7 ( 1 ) of that
            what may be described as 'unforeseen adverse                         Directive ,
            effects of the lack of coordination between social
            security schemes'?                                               — and by not organizing inspections or other
                                                                                 measures of control proper to the type of activity
                                                                                 concerned, in breach of Article 7 ( 2 ) of Directive
      ( b ) In the light of paragraphs 32, 33 and 34 of that                      82/501/EEC,
            judgment, is point 2 of the operative part of that
            judgment to be interpreted as meaning that, where
            it is impossible to interpret an applicable provision       — the Italian Republic has failed to fulfil its obligations
            of national law in such a way as to eliminate the                 under the EC Treaty,
            adverse effects of its application in a specific
            situation on free movement of workers, the
            national court must apply that rule in full, or that        — order the Italian Republic to pay the costs.
            the national court must disapply that rule of
            national law ?
                                                                        Pleas in law and main arguments adduced in support:
 3 . In the light of point 2 of the operative part of the               Article 7 ( 1 ) of the Directive provides that the Member
      judgment in Van Munster v. Rijksdienst voor Pensioe­               States are to set up or appoint the competent authorities