CELEX: C2002/202/10
Language: en
Date: 2002-08-24 00:00:00
Title: Case C-220/02: Reference for a preliminary ruling by the Oberster Gerichtshof by order of that Court of 22 May 2002 in the case of Österreichischer Gewerkschaftsbund, Gewerkschaft der Privatangestellten against Wirtschaftskammer Österreich

C 202/8                EN                    Official Journal of the European Communities                                      24.8.2002
1)    Is a carer within the meaning of Paragraph 44 of                       from the equal pay point of view,
      Volume XI of the Sozialgesetzbuch (German Code of
      Social Law) a worker for the purposes of Article 48 EC                 in the case of a system of pay that awards termination
      and/or Article 1 of Regulation (EEC) No 1408/71 (1)?                   payments to workers essentially based on past loyalty to
                                                                             their employer and graduated according to the length of
      If the answer to Question One is no:                                   their employment in order to tide them over the actual
                                                                             termination of that employment, unless the employment
2)    Where care is provided in the country where the person                 is brought to an end by the worker without good cause,
      reliant on care is insured, does the fact that a carer’s               or if the termination of it is the result of fault on his
      entitlement to social security cover under Paragraph 44                part, whereby individual periods of employment are
      of Volume XI of the Sozialgesetzbuch is conditional on                 categorised as independent and the exclusion of periods
      his or her being resident in that country, as opposed to               of unpaid leave is permitted, if that unpaid leave is taken
      any other Member State, infringe Articles 19, 25 or 28 of              for reasons that are in the worker’s interests and at his or
      Regulation (EEC) No 1408/71, following the Court’s                     her own instigation and if those reasons do not constitute
      decisions in Cases 150/85 (Drake) (2) and C-160/96                     a good cause that would entitle the worker to terminate
      (Molenaar) (3)?                                                        his or her employment and safeguard his or her termin-
                                                                             ation payment,
(1) OJ L 149 [1971] of 5.7.1971, p. 2.
(2) [1986] ECR 1995.                                                         the internal worker group covered by Paragraph 8 APSG
(3) [1998] ECR I-843.                                                        (Group A)
                                                                             is to be compared with that group of female workers
                                                                             who decide, in accordance with Paragraph 15 of the
                                                                             Mutterschutzgesetz (Law on Maternity Benefits, herein-
                                                                             after ‘the MSchG’), to take parental leave (‘childcare leave’)
Reference for a preliminary ruling by the Oberster                           to care for their children without pay after their normal
Gerichtshof by order of that Court of 22 May 2002 in the                     16-week period of ‘maternity leave’ has expired and until,
case of Österreichischer Gewerkschaftsbund, Gewerk-                         at the maximum, the child reaches its second birthday
schaft der Privatangestellten against Wirtschaftskammer                      (Group B)?
                           Österreich
                                                                        3.   Are Article 141 EC and Article 1 of Directive 75/
                        (Case C-220/02)                                      117/EEC to be construed as meaning that, where the
                                                                             differences between the internal worker groups referred
                        (2002/C 202/10)                                      to in Question 2 principally consist of the fact that, in the
                                                                             case of
Reference has been made to the Court of Justice of the                       Group A, ‘men on military service’,
European Communities by order of the Oberster Gerichtshof
(Supreme Court) of 22 May 2002, received at the Court                        1.    there is normally an obligation to ‘report for duty’
Registry on 14 June 2002, for a preliminary ruling in the                          or, in any event, if they should report voluntarily,
case of Österreichischer Gewerkschaftsbund, Gewerkschaft der
Privatangestellten against Wirtschaftskammer Österreich on                  2.    reporting for duty is only permissible in so far as it
the following questions:                                                           is in the public interest, and
1.    Is the term ‘pay’ in Article 141 EC and in Article 1 of                3.    it is normally not possible to perform services under
      Council Directive 75/117/EEC of 10 February 1975 on                          an employment relationship governed by private
      the approximation of the laws of the Member States                           law — even another employment relationship,
      relating to the application of the principle of equal pay
      for men and women (OJ 1975 L 045, p. 19) to be                         whereas, in the case of Group B, ‘unpaid parental leave’,
      construed as meaning that it also encompasses statutory
      provisions of general application, such as Paragraph 8 of              1.    it is left to the individual worker in a particular
      the Bundesgesetz über die Sicherung des Arbeitsplatzes                       employment relationship alone to choose whether
      für zum Präsenz — oder Ausbildungsdienst einberufene                         she wishes to take unpaid parental leave to care for
      oder zum Zivildienst zugewiesene Arbeitnehmer (Federal                       her child and
      law on job security for workers called up for military or
      training service or assigned to alternative civilian service,          2.    whether, during that parental leave and in the time
      hereinafter ‘the APSG’), where, in the public interest,                      available to her after caring for her children, she can
      periods of service in the performance of public duties as                    also undertake work of a limited nature in a private
      defined therein, during which it is generally not possible                   employment relationship,
      to perform services of a private-employment nature, is to
      be taken into account for the purposes of claims under                 those differences constitute sufficient objective justifi-
      employment law calculated according to length of service               cation for the different treatment of those periods for the
      in a private-employment relationship?                                  purposes of claims based on length of service?
2.    Are Article 141 EC and Article 1 of Directive 75/117/
      EEC to be construed as meaning that,