CELEX: C2003/264/24
Language: en
Date: 2003-11-01 00:00:00
Title: Judgment of the Court of 9 September 2003 in Case C-151/02 (Reference for a preliminary ruling from the Landesarbeitsgericht Schleswig-Holstein): Landeshauptstadt Kiel v Norbert Jaeger (Social policy — Protection of the safety and health of workers — Directive 93/104/EC — Concepts of "working time" and "rest period" — On-call service ("Bereitschaftsdienst") provided by doctors in hospitals)

C 264/14                   EN                           Official Journal of the European Union                                             1.11.2003
1.    Declares that, by failing to adopt the laws, regulations and              1.    Compliance with the prohibition of indirect discrimination on
      administrative provisions necessary to comply with Directive                    grounds of sex is a condition governing the legality of all
      1999/94/EC of the European Parliament and of the Council                        measures adopted by the Community institutions.
      of 13 December 1999 relating to the availability of consumer
      information on fuel economy and CO2 emissions in respect of               2.    Examination of Question 1 has failed to disclose any factor
      the marketing of new passenger cars, the Italian Republic has                   capable of affecting the validity of the provision contained in
      failed to fulfil its obligations under that directive;                          Article 5(1) of Council Directive 86/457/EEC of 15 September
                                                                                      1986 on specific training in general medical practice and
2.    Orders the Italian Republic to pay the costs.                                   Article 34(1) of Council Directive 93/16/EEC of 5 April
                                                                                      1993 to facilitate the free movement of doctors and the mutual
(1) OJ C 68 of 16.3.2002.
                                                                                      recognition of their diplomas, certificates and other evidence of
                                                                                      formal qualifications, according to which part-time training in
                                                                                      general medical practice must include a certain number of
                                                                                      periods of full-time training.
                                                                                (1) OJ C 97 of 20.4.2002.
                  JUDGMENT OF THE COURT
                         of 9 September 2003
in Case C-25/02 (Reference for a preliminary ruling
from the Bundesverwaltungsgericht): Katharina Rinke v
                     Ärztekammer Hamburg (1)                                                      JUDGMENT OF THE COURT
(Equal treatment for men and women — Directives 86/457/
                                                                                                        of 9 September 2003
EEC and 93/16/EEC — Obligation to undertake certain
periods of full-time training during part-time training in
                       general medical practice)                                in Case C-151/02 (Reference for a preliminary ruling from
                                                                                the Landesarbeitsgericht Schleswig-Holstein): Landes-
                             (2003/C 264/23)                                                  hauptstadt Kiel v Norbert Jaeger (1)
                     (Language of the case: German)                             (Social policy — Protection of the safety and health of
                                                                                workers — Directive 93/104/EC — Concepts of ‘working
(Provisional translation; the definitive translation will be published          time’ and ‘rest period’ — On-call service (‘Bereitschafts-
                     in the European Court Reports)                                         dienst’) provided by doctors in hospitals)
                                                                                                           (2003/C 264/24)
In Case C-25/02: Reference to the Court under Article 234 EC
by the Bundesverwaltungsgericht (Germany) for a preliminary                                         (Language of the case: German)
ruling in the proceedings pending before that court between
Katharina Rinke and Ärztekammer Hamburg on the interpret-
ation of Article 5 of Council Directive 86/457/EEC of 15 Sep-                   (Provisional translation; the definitive translation will be published
tember 1986 on specific training in general medical practice                                        in the European Court Reports)
(OJ 1986 L 267, p. 26) and Article 34 of Council Directive 93/
16/EEC of 5 April 1993 to facilitate the free movement of
doctors and the mutual recognition of their diplomas, certifi-
cates and other evidence of formal qualifications (OJ 1993                      In Case C-151/02: Reference to the Court under Article 234
L 165, p. 1), and on the compatibility of those provisions with                 EC by the Landesarbeitsgericht Schleswig-Holstein (Germany)
the prohibition of indirect discrimination on grounds of sex as                 for a preliminary ruling in the proceedings pending before that
laid down in Council Directive 76/207/EEC of 9 February 1976                    court between Landeshauptstadt Kiel and Norbert Jaeger
on the implementation of the principle of equal treatment for                   on the interpretation of Council Directive 93/104/EC of
men and women as regards access to employment, vocational                       23 November 1993 concerning certain aspects of the organis-
training and promotion, and working conditions (OJ 1976                         ation of working time (OJ 1993 L 307, p. 18) and, in particular,
L 39, p. 40), the Court, composed of: G.C. Rodríguez Iglesias,                  Articles 2(1) and (3) thereof, the Court, composed of: G.C. Ro-
President, J.-P. Puissochet, M. Wathelet, R. Schintgen and                      dríguez Iglesias, President, M. Wathelet, R. Schintgen (Rappor-
C.W.A. Timmermans (Presidents of Chambers), C. Gulmann,                         teur) and C.W.A. Timmermans, Presidents of Chambers,
D.A.O. Edward, A. La Pergola, P. Jann (Rapporteur), V. Skouris,                 C. Gulmann, D.A.O. Edward, P. Jann, V. Skouris, F. Macken,
F. Macken, N. Colneric, S. von Bahr, J.N. Cunha Rodrigues and                   N. Colneric, S. von Bahr, J.N. Cunha Rodrigues and A. Rosas,
A. Rosas, Judges; L.A. Geelhoed, Advocate General;                              Judges; D. Ruiz-Jarabo Colomer, Advocate General; H.A. Rühl,
M.-F. Contet, Principal Administrator, for the Registrar, has                   Principal Administrator, for the Registrar, has given a judgment
given a judgment on 9 September 2003, in which it has ruled:                    on 9 September 2003, in which it has ruled:
 ---pagebreak--- 1.11.2003                EN                           Official Journal of the European Union                                           C 264/15
1.   Council Directive 93/104/EC of 23 November 1993 concern-                 Penale di Perugia — Ufficio per le indagini preliminari —
     ing certain aspects of the organisation of working time must be          (District Civil and Criminal Court, Perugia — Preliminary
     interpreted as meaning that on-call duty (‘Bereitschaftsdienst’)         Investigations Section) of 12 June 2003, received at the Court
     performed by a doctor where he is required to be physically              Registry on 1st August 2003, for a preliminary ruling in the
     present in the hospital must be regarded as constituting in its          case against Alessandrello Rosario and Others on the following
     totality working time for the purposes of that directive even            questions:
     where the person concerned is permitted to rest at his place of
     work during the periods when his services are not required with
     the result that that directive precludes legislation of a Member
     State which classifies as rest periods an employee’s periods of
                                                                              1.   With reference to the duty of each Member State to adopt
     inactivity in the context of such on-call duty.
                                                                                   ‘appropriate penalties’ for the infringements established
                                                                                   by the first and fourth directives (Directive 68/151/
2.   Directive 93/104 must also be interpreted as meaning that:                    EEC (1) and Directive 78/660/EEC (2)), must the directives
                                                                                   themselves and in particular the combined provisions of
     —      in circumstances such as those in the main proceedings,                Article 44(3)(g) of the EC Treaty, Articles 2(1)(f) and 6 of
            that directive precludes legislation of a Member State                 the first directive (Directive 68/151/EEC) and Article 2(2),
            which, in the case of on-call duty where physical presence             (3) and (4) of the fourth directive (Directive 78/660/EEC),
            in the hospital is required, has the effect of enabling, in            as consolidated by Directive 83/349 (3) and Directive 90/
            an appropriate case by means of a collective agreement or              605 (4), be interpreted as meaning that that legislation
            a works agreement based on a collective agreement, an                  precludes a law of a Member State which, in amending
            offset only in respect of periods of on-call duty during               the system of penalties already in force in respect of
            which the worker has actually been engaged in professional             company law offences concerning the infringement of the
            activities;                                                            obligations imposed in order to safeguard the principle of
                                                                                   public and accurate information on companies, lays
                                                                                   down a sanctionative system which in the specific
     —      in order to come within the derogating provisions set out              instance is not informed by the criteria of effectiveness,
            in Article 17(2), subparagraph 2.1(c)(i) of the directive,             proportionality and dissuasiveness of the sanctions
            a reduction in the daily rest period of 11 consecutive hours           imposed in order to ensure that that principle is upheld?
            by a period of on-call duty performed in addition to
            normal working time is subject to the condition that
            equivalent compensating rest periods be accorded to the
            workers concerned at times immediately following the
            corresponding periods worked;                                     2.   Must those directives and, in particular, Article 44(3)(g)
                                                                                   of the EC Treaty, Articles 2(1)(f) and 6 of the first directive
                                                                                   (Directive 68/151/EEC) and Article 2(2), (3) and (4) of the
     —      furthermore, in no circumstances may such a reduction in
                                                                                   fourth directive (Directive 78/660/EEC), as consolidated
            the daily rest period lead to the maximum weekly working
                                                                                   by Directive 83/349 and Directive 90/605), be interpreted
            time laid down in Article 6 of the directive being exceeded.
                                                                                   as meaning that that legislation precludes a law of a
                                                                                   Member State which does not make it a punishable
                                                                                   offence for companies to infringe obligations concerning
(1) OJ C 156 of 29.6.2002.                                                         disclosure and the provisions of accurate information on
                                                                                   certain company documents (including the balance sheet
                                                                                   and the profit and loss account) where the disclosure
                                                                                   of false company accounts or the failure to provide
                                                                                   information result in a distortion of the financial results
                                                                                   for a given period, or a distortion in the net assets, which
                                                                                   does not exceed a certain percentage threshold?
Reference for a preliminary ruling by the Tribunale Civile
e Penale di Perugia — Ufficio per le indagini preliminari                     3.   Must those directives and, in particular, Article 44(3)(g)
— by order of that Court of 12 June 2003 in the case                               of the EC Treaty, Articles 2(1)(f) and 6 of the first directive
          against Alessandrello Rosario and Others                                 (Directive 68/151/EEC) and Article 2(2), (3) and (4) of the
                                                                                   fourth directive (Directive 78/660/EEC), as consolidated
                           (Case C-338/03)                                         by Directive 83/349 and Directive 90/605), be interpreted
                                                                                   as meaning that that legislation precludes a law of a
                                                                                   Member State which does not make it a punishable
                           (2003/C 264/25)                                         offence for companies to infringe obligations concerning
                                                                                   disclosure and the provision of accurate information
                                                                                   where statements are made which, although aimed at
                                                                                   deceiving members or the public with a view to securing
                                                                                   an unjust profit, are the consequence of estimated
Reference has been made to the Court of Justice of the                             valuations which, taken individually, depart from actual
European Communities by order of the Tribunale Civile e                            values to an extent not greater than a certain threshold?