CELEX: C2002/289/15
Language: en
Date: 2002-11-23 00:00:00
Title: Case C-313/02: Reference for a preliminary ruling by the Oberster Gerichtshof (Supreme Court) by order of that Court of 8 August 2002 in the case of Nicole Wippel against Peek & Cloppenburg GmbH & Co KG

23.11.2002              EN                    Official Journal of the European Communities                                        C 289/9
Reference for a preliminary ruling by the Oberster                                 pay for men and women (OJ 1975 L 45, p. 19,
Gerichtshof (Republic of Austria) by order of that Court                           hereinafter ‘Directive 75/117/EEC’) and Clause 2
of 23 July 2002 in the case of Peter Haackert against                              of the Framework Agreement on part-time work
        Pensionsversicherungsanstalt der Angestellten                              concluded by UNICE, CEEP and the ETUC (herein-
                                                                                   after, the ‘Framework Agreement on part-time
                                                                                   work’), which was implemented by Council Directive
                           (Case C-303/02)                                         97/81/EC (OJ 1997 L 14, p. 9), and Point 9 of the
                                                                                   Community Charter of the Fundamental Social
                           (2002/C 289/14)                                         Rights of Workers of 9 December 1989 to be
                                                                                   construed in such a way (concept of ‘worker’) that
                                                                                   constant protection is afforded even to persons such
                                                                                   as the claimant in the present case who, in a
                                                                                   comprehensive framework agreement on employ-
Reference has been made to the Court of Justice of the
                                                                                   ment, agree terms on pay, termination of employ-
European Communities by order of the Oberster Gerichtshof
                                                                                   ment and the like but also stipulate that the amount
(Republic of Austria) (Supreme Court) of 23 July 2002,
                                                                                   and positioning of working time should be governed
received at the Court Registry on 26 August 2002, for a
                                                                                   by the workload and agreed by the parties in the
preliminary ruling in the case of Peter Haackert against
                                                                                   light of the individual circumstances of each case?
Pensionsversicherungsanstalt der Angestellten (Salaried
Employees’ Pension Insurance Institution) on the following
question:
                                                                              (b) Does the concept of ‘worker’ within the meaning of
                                                                                   Question 1(a) apply where there is a prospect of
‘Is the derogation contained in Article 7(1)(a) of Council                         work on approximately three days a week and two
Directive 79/7/EEC of 19 December 1978 ( 1) on the progress-                       Saturdays in each month without any binding
ive implementation of the principle of equal treatment for                         commitment?
men and women in matters of social security to be interpreted
as being applicable to a benefit such as the early old-age
pension in connection with unemployment in respect of which                   (c)  Does the concept of ‘worker’ within the meaning of
different pensionable ages for men and for women are                               Question 1(a) apply where work is actually carried
determined in national law?’                                                       out on approximately three days a week and two
                                                                                   Saturdays in each month?
( 1) OJ L 6 [1979], p. 24.
                                                                              (d) Is the Community Charter of the Fundamental Social
                                                                                   Rights of Workers of 9 December 1989 legally
                                                                                   binding, at least in so far as reliance is placed on it
                                                                                   in the interpretation of other rules of Community
                                                                                   law?
Reference for a preliminary ruling by the Oberster
Gerichtshof (Supreme Court) by order of that Court of                    2.   Are Article 141 EC and Article 1 of Directive 75/117/
8 August 2002 in the case of Nicole Wippel against Peek                       EEC and Article 5 of Directive 76/207/EEC (OJ L 039,
                 & Cloppenburg GmbH & Co KG                                   p. 14, hereinafter ‘Directive 76/207/EEC’) and Clause 4 of
                                                                              the Framework Agreement on part-time work to be
                                                                              construed as meaning that it constitutes objectively
                           (Case C-313/02)                                    unjustified unequal treatment if,
                           (2002/C 289/15)
                                                                              in the case of full-time workers (approximately 60 % men
                                                                              and 40 % women), provision is made by statute or
                                                                              collective agreement for there to be rules not only on the
Reference has been made to the Court of Justice of the                        amount of working time but also (to some extent)
European Communities by order of the Oberster Gerichtshof                     regarding its positioning, the observance of which a full-
(Supreme Court) of 8 August 2002, received at the Court                       time worker is entitled to demand even in the absence of
Registry on 5 September 2002, for a preliminary ruling in the                 a contractual arrangement,
case of Nicole Wippel against Peek & Cloppenburg GmbH &
Co KG on the following questions:
                                                                              whereas there are no such rules for part-timers, the vast
1.    (a)    Are Article 141 EC and Article 1 of Council                      majority of whom are women (approximately 90 %
             Directive 75/117/EEC of 10 February 1975 on the                  women and 10 % men), even where the contracting
             approximation of the laws of the Member States                   parties have not come, as required by statute, to a
             relating to the application of the principle of equal            contractual arrangement on this point?
 ---pagebreak--- C 289/10               EN                   Official Journal of the European Communities                                  23.11.2002
3.  Are Article 141 EC and Article 1 of Directive 75/117/                             ment, it would be possible to schedule working
    EEC and Article 5 of Directive 76/207/EEC and Clause 4                            time (potential working time), if the length of
    of the Framework Agreement on part-time work to be                                prior notice of a job placement should be less
    construed as meaning that it constitutes objectively                              than
    unjustified unequal treatment if, in the case of part-
    timers, on the assumption that the vast majority of them                          (a)   14 days or
    are women (approximately 90 % women and 10 % men),
    an employer expressly rules out an agreement on the                               (b) a reasonable amount of time?
    positioning and amount of working time, whereas in the
    case of full-time workers, on the assumption that women
    are not in that same majority, both the amount and, to
    some extent, the allocation of working time are already
    laid down by statute or collective agreement?
                                                                       Reference for a preliminary ruling by the Bundesfinanz-
                                                                       hof by order of that Court of 4 July 2002 in the
4.  Are Article 141 EC and Article 1 of Directive 75/117/              proceedings between Finanzamt Rendsburg and Detlev
    EEC and Article 5 of Directive 76/207/EEC and Clause 4                                          Harbs
    together with Clause 1(b) (facilitation of the development
    of part-time work) of the Framework Agreement on part-                                    (Case C-321/02)
    time work to be construed as meaning that in order to
    compensate for objectively unjustified unequal treatment                                  (2002/C 289/16)
    it is necessary and permissible
                                                                       Reference has been made to the Court of Justice of the
    A      with regard to the amount of working time, to               European Communities by order of the Bundesfinanzhof
           presume a definite amount and, if so, to presume            (Federal Finance Court) of 4 July 2002, received at the Court
                                                                       Registry on 13 September 2002, for a preliminary ruling in
                                                                       the proceedings between Finanzamt Rendsburg and Detlev
           1.   normal working time, or                                Harbs on the following question:
                                                                       Where the owner of a farm:
           2.   the maximum length of weekly working time
                actually worked, unless the employer can prove         —    gives up part of his farm (the entire dairy cow operation)
                that this was due to unusually high demand for              and leases the property necessary for that operation to
                work at that particular time, or                            another farmer;
                                                                       —    and continues to farm on a not insignificant scale after
           3.   the demand ascertained at the date of con-                  granting the lease,
                clusion of the contract of employment, or
                                                                       may he treat the turnover from the lease — like the rest of his
                                                                       turnover — under the flat-rate scheme for farmers (Article 25
           4.   average weekly working time, and                       of Directive 77/388/EEC), or is the turnover from the lease
                                                                       taxable under the general rules?
    B      with regard to the positioning of working time, in
           order to compensate for the extra burden on the
           worker caused by flexibility and for the benefit
           afforded to the employer, to award the worker
                                                                       Reference for a preliminary ruling by the Sozialgericht
                                                                       Augsburg by order of that Court of 7 March 2002 in the
           1.   a ‘reasonable’ supplement on the hourly wage,          proceedings between Eva-Maria Weller and Deutsche
                determined in the light of the individual cir-                         Angestellten-Krankenkasse
                cumstances in question, or
                                                                                              (Case C-322/02)
           2.   a minimum supplement equal to that paid to                                    (2002/C 289/17)
                full-time workers who work more than normal
                working hours (eight hours a day or forty
                hours a week), or                                      Reference has been made to the Court of Justice of the
                                                                       European Communities by order of the Sozialgericht Augsburg
                                                                       (Social Court, Augsburg) of 7 March 2002, received at the
           3.   irrespective of the amount of time worked,             Court Registry on 16 September 2002, for a preliminary ruling
                compensation for time not remunerated as               in the proceedings between Eva-Maria Weller and Deutsche
                working time during which, under the agree-            Angestellten-Krankenkasse on the following questions: