CELEX: C2003/275/21
Language: en
Date: 2003-11-15 00:00:00
Title: Judgment of the Court of 30 September 2003 in Case C-224/01 (Reference for a preliminary ruling from the Landesgericht für Zivilrechtssachen Wien): Gerhard Köbler v Republik Österreich (Equal treatment — Remuneration of university professors — Indirect discrimination — Length-of-service increment — Liability of a Member State for damage caused to individuals by infringements of Community law for which it is responsible — Infringements attributable to a national court)

15.11.2003              EN                           Official Journal of the European Union                                                 C 275/13
Maria Walcher and Bundesamt für Soziales und Behinderten-                                      JUDGMENT OF THE COURT
wesen Steiermark, on the interpretation of Council Directive
80/987/EEC of 20 October 1980 on the approximation of the
laws of the Member States relating to the protection of                                              of 30 September 2003
employees in the event of the insolvency of their employer (OJ
1980 L 283, p. 23), as amended by the Act concerning the
conditions of accession of the Republic of Austria, the Republic             in Case C-224/01 (Reference for a preliminary ruling from
of Finland and the Kingdom of Sweden and the adjustments to                  the Landesgericht für Zivilrechtssachen Wien): Gerhard
the Treaties on which the European Union is founded (OJ                                       Köbler v Republik Österreich (1)
1994 C 241, p. 21, and OJ 1995 L 1, p. 1), the Court (Sixth
Chamber), composed of: J.-P. Puissochet, President of the
Chamber, C. Gulmann, F. Macken, N. Colneric (Rapporteur)                     (Equal treatment — Remuneration of university professors
and J.N. Cunha Rodrigues, Judges; J. Mischo, Advocate General;               — Indirect discrimination — Length-of-service increment —
R. Grass, Registrar, has given a judgment on 11 September                    Liability of a Member State for damage caused to individuals
2003, in which it has ruled:                                                 by infringements of Community law for which it is respon-
                                                                                sible — Infringements attributable to a national court)
                                                                                                        (2003/C 275/21)
1.    Council Directive 80/987/EEC of 20 October 1980 on the
      approximation of the laws of the Member States relating to the
      protection of employees in the event of the insolvency of their                             (Language of the case: German)
      employer, as amended by the Act concerning the conditions of
      accession of the Republic of Austria, the Republic of Finland
      and the Kingdom of Sweden and the adjustments to the Treaties          (Provisional translation; the definitive translation will be published
      on which the European Union is founded precludes a rule that                                in the European Court Reports)
      an employee with a significant shareholding in the private
      limited company that employs him, but who does not exercise a
      dominant influence over that company, loses, pursuant to the
      Austrian case-law relating to shareholder loans in lieu of capital
      contributions, his entitlement to the guarantee in respect of          In Case C-224/01: Reference to the Court under Article 234
      claims for outstanding pay which result from the employer’s            EC by the Landesgericht für Zivilrechtssachen Wien (Austria),
      insolvency and are covered by Article 4(2) of that directive if, in    for a preliminary ruling in the proceedings pending before that
      the 60 days from the time he first could have become aware             court between Gerhard Köbler and Republik Österreich, on
      that the company was no longer creditworthy, he fails to make          the interpretation, first, of Article 48 of the EC Treaty (now,
      any genuine demand for payment of salary owed to him.                  after amendment, Article 39 EC) and, secondly, the judgments
                                                                             of the Court in Joined Cases C-46/93 and C-48/93Brasserie du
                                                                             Pêcheur and Factortame [1996] ECR I-1029 and Case C-54/
                                                                             96Dorsch Consult [1997] ECR I-4961, the Court, composed of:
2.    To avoid abuses a Member State is, in principle, entitled to take      G.C. Rodríguez Iglesias, President, J.-P. Puissochet, M. Wathelet,
      measures that deny such an employee an entitlement to a                R. Schintgen and C.W.A. Timmermans (Rapporteur) (Presi-
      guarantee in respect of claims for outstanding salary arising          dents of Chambers), C. Gulmann, D.A.O. Edward, A. La
      after the date on which an employee who is not a shareholder           Pergola, P. Jann, V. Skouris, F. Macken, N. Colneric, S. von
      would have resigned on the ground of non-payment of his                Bahr, J.N. Cunha Rodrigues and A. Rosas, Judges; P. Léger,
      salary, unless it is established that there has been no abusive        Advocate General; H.A. Rühl, Principal Administrator, for the
      conduct. As regards the guarantee to pay claims covered by             Registrar, has given a judgment on 30 September 2003, in
      Article 4(2) of Directive 80/987, as amended, the Member               which it has ruled:
      State is not entitled to assume that, as a general rule, an
      employee who is not a shareholder would have resigned on the
      ground of non-payment of his salary before his salary had been         1.    The principle that Member States are obliged to make good
      in arrears for a period of three months.                                     damage caused to individuals by infringements of Community
                                                                                   law for which they are responsible is also applicable where the
                                                                                   alleged infringement stems from a decision of a court adjudicat-
                                                                                   ing at last instance where the rule of Community law infringed
                                                                                   is intended to confer rights on individuals, the breach is
                                                                                   sufficiently serious and there is a direct causal link between that
(1) OJ C 212 of 28.7.2001.                                                         breach and the loss or damage sustained by the injured parties.
                                                                                   In order to determine whether the infringement is sufficiently
                                                                                   serious when the infringement at issue stems from such a
                                                                                   decision, the competent national court, taking into account the
                                                                                   specific nature of the judicial function, must determine whether
                                                                                   that infringement is manifest. It is for the legal system of each
                                                                                   Member State to designate the court competent to determine
                                                                                   disputes relating to that reparation.
 ---pagebreak--- C 275/14                 EN                           Official Journal of the European Union                                             15.11.2003
2.    Article 48 of the EC Treaty (now, after amendment, Article 39           company established in that second Member State, and made
      EC) and Article 7(1) of Regulation (EEC) No 1612/68 of the              available to the worker by his employer who is also established in the
      Council of 15 October 1968 on freedom of movement for                   second Member State.
      workers within the Community are to be interpreted as meaning
      that they preclude the grant, under conditions such as those laid
                                                                              (1) OJ C 227 of 11.8.2001.
      down in Article 50a of the Gehaltsgesetz 1956 (law on salaries
      of 1956), as amended in 1997, of a special length-of-
      service increment which, according to the interpretation of the
      Verwaltungsgerichtshof (Austria) in its judgment of 24 June
      1998, constitutes a loyalty bonus.
3.    An infringement of Community law, such as that stemming in                                JUDGMENT OF THE COURT
      the circumstances of the main proceedings from the judgment
      of the Verwaltungsgerichtshof of 24 June 1998, does not have                                   of 30 September 2003
      the requisite manifest character for liability under Community
      law to be incurred by a Member State for a decision of one of           in Case C-239/01: Federal Republic of Germany v Com-
      its courts adjudicating at last instance.                                         mission of the European Communities (1)
(1) OJ C 212 of 28.7.2001.                                                    (Agriculture — EAGGF — Partial annulment of Regulation
                                                                              (EC) No 690/2001 — Special market support measures in
                                                                              the beef sector — Implementing regulation of the Com-
                                                                              mission providing for compulsory co-financing by the Mem-
                                                                                                            ber States)
                                                                                                         (2003/C 275/23)
                  JUDGMENT OF THE COURT
                                                                                                  (Language of the case: German)
                           (Fifth Chamber)
                                                                              (Provisional translation; the definitive translation will be published
                         of 2 October 2003                                                        in the European Court Reports)
in Case C-232/01 (Reference for a preliminary ruling from
the Politierechtbank te Mechelen): Criminal procedure                         In Case C-239/01, Federal Republic of Germany (Agent: W.-D.
                     against Hans van Lent (1)                                Plessing, acting as Agent, assisted by J. Sedemund) supported
                                                                              by Kingdom of Denmark (Agents: J. Molde and J. Bering
                                                                              Liisberg) with an address for service in Luxembourg v Com-
(Freedom of movement for workers — Vehicle leasing —                          mission of the European Communities (Agents: D. Booß and
Obligation to register vehicle in worker’s Member State of                    M. Niejahr): Application for annulment of Article 5(5) of
                               residence)                                     Commission Regulation (EC) No 690/2001 of 3 April 2001
                                                                              on special market support measures in the beef sector (OJ
                           (2003/C 275/22)                                    2001 L 95, p. 8), in so far as that provision requires each
                                                                              Member State concerned to finance 30 % of the price of the
                     (Language of the case: Dutch)                            meat purchased under that regulation, the Court, composed of:
                                                                              G.C. Rodríguez Iglesias, President, J.-P. Puissochet, M. Wathelet,
                                                                              R. Schintgen and C.W.A. Timmermans (Presidents of Cham-
(Provisional translation; the definitive translation will be published
                                                                              bers), C. Gulmann, D.A.O. Edward, A. La Pergola (Rapporteur),
                    in the European Court Reports)
                                                                              P. Jann, V. Skouris, F. Macken, N. Colneric and S. von Bahr,
                                                                              Judges; J. Mischo, Advocate General; M.-F. Contet, Principal
                                                                              Administrator, for the Registrar, has given a judgment on
In Case C-232/01: Reference to the Court under Article 234                    30 September 2003, in which it:
EC by the Politierechtbank te Mechelen (Belgium) for a
preliminary ruling in the criminal proceedings before that                    1.    Annuls Article 5(5) of Commission Regulation (EC) No 690/
court against Hans van Lent, on the interpretation of Article                       2001 of 3 April 2001 on special market support measures in
39 EC, the Court (Fifth Chamber), composed of: M. Wathelet,                         the beef sector in so far as that provision requires each Member
President of the Chamber, D.A.O. Edward, P. Jann, S. von Bahr                       State concerned to finance 30 % of the price of the meat
(Rapporteur) and A. Rosas, Judges; P. Léger, Advocate General;                      purchased under that regulation;
M.-F. Contet, Principal Administrator, for the Registrar, has
given a judgment on 2 October 2003, in which it has ruled:                    2.    Orders the Commission of the European Communities to pay
                                                                                    the costs.
Article 39 EC precludes national rules of a Member State, such as
those in the present case, which prohibit a worker who is domiciled           (1) OJ C 245 of 1.9.2001.
in that Member State from using on its territory a vehicle registered
in another neighbouring Member State, belonging to a leasing