CELEX: C1997/212/38
Language: en
Date: 1997-07-12 00:00:00
Title: Reference for a preliminary ruling by the Liverpool Industrial Tribunal, by order of that court of 28 April 1997, in the case of Donna Marie Davies against Girobank plc (Case C-197/97)

No C 212/20              EN                  Official Journal of the European Communities                                       12 . 7. 97
Communities, represented by Paolo Stancanelli, of its                   3.   refer the action back to the Court of First Instance for
Legal Service, acting as Agent, with an address for service                  determination on the merits;
in Luxembourg at the office of Carlos Gomez de la Cruz,
also of its Legal Service, Wagner Centre, Kirchberg.                    4 . order the Commission to pay the costs of the
                                                                             interlocutory dispute .
The applicant claims that the Court should :
                                                                        Pleas in law and main arguments adduced in support:
— declare that, by failing to adopt and notify within the
      prescribed period the provisions necessary to transpose
      into its domestic legal system Council Directive 91/              The contested order states, contrary to the appellant's
      676/EEC of 12 December 1991 concerning the                        express intention, that the real object of the appellant's
      protection of waters against pollution caused by                  action was a declaration that the Federal Republic of
      nitrates from agricultural sources ('), and in particular         Germany has infringed the Treaty through the case-law
      by failing to comply with the obligation laid down in             of its courts, and that the appellant has thereby suffered
      Article 3 ( 2 ) of that Directive, the Italian Republic has       loss . That reinterpretation is factually unjustified and
      failed to fulfil its obligations under Community law,             procedurally inadmissible .
— order the Italian Republic to pay the costs of the
      proceedings.
Pleas in law and main arguments adduced in support:
                                                                        Reference for a preliminary ruling by the Liverpool
                                                                        Industrial Tribunal, by order of that court of 28 April
 Article 189 of the EC Treaty, which provides that a                    1997, in the case of Donna Marie Davies against
 Directive is binding, as to the result to be achieved, upon                                          Girobank pic
 each Member State to which it is addressed, implies an
 obligation on Member States to respect the time limits for                                        ( Case C-197/97)
 transposition laid down in Directives . That time limit                                             ( 97/C 212/38 )
 passed without the Italian Republic having adopted the
 measures necessary to comply with the Directive referred
 to in the form of order sought by the Commission.                      Reference has been made to the Court of Justice of the
                                                                        European Communities by an order of the Liverpool
 0 ) OJ No L 375 , 31 . 12 . 1991 , p . 1 .                             Industrial Tribunal of 28 April 1997, which was received
                                                                         at the Court Registry on 23 May 1997, for a preliminary
                                                                         ruling in the case of Donna Marie Davies against
                                                                         Girobank pic, on the following questions :
                                                                         1 . Are all or any of the following contractual provisions
 Appeal brought on 21 May 1997 by Intertronic F.                              contrary to the principle of equal pay for equal work
 Cornelis GmbH against the order made on 19 February                          under Article 119 of the EC Treaty so far as they
  1997 by the Third Chamber of the Court of First Instance                    affect a woman who has returned to work after taking
 of the European Communities in Case T- 11 7/96 between                       maternity leave to which she was entitled:
 Intertronic F. Cornelis GmbH and the Commission of the
                       European Communities                                   ( a ) a provision whereby entitlement to a pension
                          ( Case C-196/97 P)                                         ( under a final salary pension scheme ) is calculated
                                                                                     according to a formula which includes a factor
                             ( 97/C 212/37 )                                         representing pensionable service, where that
                                                                                     pensionable service does not accrue during any
  An appeal against the order made on 19 February 1997                               period of unpaid leave (which term includes a
  by the Third Chamber of the Court of First Instance of the                         period of unpaid maternity leave when the woman
  European Communities in Case T-l 17/96 between                                     is no longer in receipt of the contractual or
  Intertronic F. Cornelis GmbH and the Commission of the                             statutory maternity pay ) when the employee does
  European Communities was brought before the Court of                               not pay contributions into the employer's
  Justice of the European Communities on 21 May 1997 by                              contributory pension scheme ;
  Intertronic F. Cornelis GmbH, Emden ( Germany ),
  represented by Detlef Schumacher and Wilhelm Wiltfang,                       ( b ) a practice whereby entitlement to a pension ( under
  Rechtsanwalte, Bremen.                                                              a final salary pension scheme ) is calculated
                                                                                      according to a formula which includes a factor
                                                                                      representing final pensionable salary, which means
  The appellant claims that the Court should:
                                                                                      whichever is the greater of ( i ) the amount of the
                                                                                      employee's pensionable salary paid during the
   1.  set aside the order of the Court of First Instance                             period of 12 months ending on the last day of her
       (Third Chamber ) of 19 February 1997;                                          employment, and ( ii ) the highest amount of
                                                                                      pensionable salary received by the employee during
  2 . declare the action admissible;                                                  any one of the last five complete tax years before
 ---pagebreak--- 12 . 7. 97                EN                Official Journal of the European Communities                                 No C 212/21
           the last day of her employment, with the result             Action brought on 23 May 1997 by the Commission of
           that employees who took unpaid leave ( including            the European Communities against the Federal Republic
           unpaid maternity leave ) during the periods referred                                       of Germany
           to would usually have a lower final pensionable                                        ( Case C-198/97)
           salary than they would have had if they had not
           taken such unpaid leave;                                                                 ( 97/C 212/39 )
     (c ) a provision whereby entitlement to a voluntary               An action against the Federal Republic of Germany was
           redundancy payment is calculated according to a             brought before the Court of Justice of the European
           formula which includes a factor representing                Communities on 23 May 1997 by the Commission of the
           service ( which is calculated as pensionable service        European Communities, represented by Claudia Schmidt,
           under the pension scheme plus any period of                 of its Legal Service, assisted by Alexander Bohlke,
           actual service before joining the scheme ), where           Rechtsanwalt, with an address for service in Luxembourg
           that service does not accrue during any period of           at the office of Carlos Gomez de la Cruz, of the
           unpaid leave (which term includes a period of               Commission's Legal Service, Wagner Centre, Kirchberg.
           unpaid maternity leave when the woman is no
           longer in receipt of contractual or statutory               The applicant claims that the Court should:
           maternity pay ) when the employee does not pay
           contributions into the employer's contributory              ( a ) declare the Federal Republic of Germany in breach of
           pension scheme;                                                   its obligations under Articles 4 ( 1 ) and 6 ( 1 ) of
                                                                             Council Directive 76/ 160/EEC of 8 December 1975
     ( d ) a practice whereby entitlement to a voluntary                     concerning the quality of bathing water ( OJ No L 31 ,
           redundancy payment is calculated according to a                   5 . 2 . 1976, p. 1 ) in that, in relation to the original
                                                                             Bundeslander:
           formula which includes a factor representing a
           week's pay, where the amount of a week's pay is                   — it failed to take the necessary measures to ensure
           based on final pensionable salary as mentioned in                      that, within 10 years following notification of the
           ( b) above, with the result that an employee who                       Directive on 10 December 1975 , the quality of
           took unpaid leave ( including unpaid maternity                         bathing water conformed to the limit values set in
           leave ) during the period of 12 months ending on                       accordance with Article 3 thereof,
           the last day of her employment would receive a
           lower redundancy payment than she would have                      — and failed to carry out sampling operations with
           had if she had not taken such unpaid leave ?                           the minimum frequency laid down in the Annex to
                                                                                  the Directive .
2 . What difference, if any, would it make to the answer
                                                                       ( b ) order the Federal Republic of Germany to pay the
     to question 1 , if the woman were entitled to continue                  costs .
     to accrue pensionable service during a period of
     unpaid maternity leave by paying:                                 Pleas in law and main arguments adduced in support:
     ( a ) a member's contributions; or                                — Infringement of Article 4 ( 1 ) of the Directive:
     ( b ) a member's and the employer's contributions to                    The statistics provided by the Federal Republic of
           the pension scheme ?                                              Germany, as contained in the published annual reports
                                                                             to the Commission pursuant to Article 13 of the
3 . What difference, if any, does it make to the answer to                   Directive, show that in the Federal Republic of
     question 1 , or any part thereof, if a considerably                     Germany a large proportion of bathing water still does
     greater proportion of female employees than of male                     not comply with the mandatory limit values laid down
     employees have had their pay ( whether entitlement to                   by the Directive . It can be deduced from the report to
     a pension or a voluntary redundancy payment )                           the Commission on the 1995 bathing season that, of
     reduced because they have taken unpaid leave                            the 446 coastal bathing areas, 11,9% do not satisfy
     ( including unpaid maternity leave )?                                   the limits in the Directive . Taking into account the
                                                                             further consideration that 6,5 % of bathing areas on
                                                                             the German coasts have not been sufficiently
4 . Is it contrary to the principle of equal pay for equal                   monitored, these figures are significant. The situation
     work if a woman on maternity leave, having received                     regarding the 1 822 German inland bathing areas is
     the contractual and/or statutory maternity pay to                       even worse . Whilst only 10,3% fail to comply with
     which       she   is   entitled under   her    contract   of
                                                                             the limit values, 42,5 % of them have not been
     employment and/or national legislation, does not                        sufficiently monitored .
     receive any further contractual maternity pay in
     circumstances where an employee who is absent from                      It is irrelevant, even if true, that, if the proposal for
     work by reason of sickness, for the same period as the                  amendment by the Commission were to be accepted
     woman is absent from work on maternity leave to                         by the Council, and if, in particular, the 'total
     which she is entitled, would receive contractual sick                   coliform' microbiological parameter were to disappear
     pay ?                                                                   and be replaced by a mandatory limit value for
                                                                             Streptococcus faec., part of the infringements
                                                                             ascertained would become nugatory.