CELEX: C1996/354/40
Language: en
Date: 1996-11-23 00:00:00
Title: Reference for a preliminary ruling by the Employment Appeal Tribunal, London, by order of that court of 14 August 1996, in the case of Mrs B. S. Levez against T. H. Jennings (Harlow Pools) Ltd (Case C-326/96)

No C 354/20            EN                 Official Journal of the European Communities                                        23 . 11 . 96
Reference for a preliminary ruling from the Irinodikio,                      liable in the final analysis to repay the reduction and
Exinos ( Greece ) by order of that court of 24 July 1995 in the              premium ?
case of Odetti Nikou Petridi Anonymos Kapnemboriki AE
             against Athanasias Simou and others                     (')   OJ No L 110 , 29 . 4 . 1988 , p . 35 .
                        ( Case C-324/96 )                            (2)   OJ, English Special Edition , 1970 ( I ), p. 206 .
                                                                     ( 5)  OJ No L 129 , 11 . 5 . 1989 , p . 16 .
                          ( 96/C 354/38 )                            (4 )  OJ No L 129 , 11 . 5 . 1989 , p . 17 .
                                                                     (5)   OJ No L 187, 19 . 7 . 1990 , p . 23 .
Reference has been made to the Court of Justice of the               (6)   OJ No L 376 , 31 . 12 . 1988 , p . 34 .
European Communities by order of the Irinodikio [Small
Claims Court], Exinos of 24 July 1995 , received at the Court
Registry on 3 October 1996 , for a preliminary ruling in the
case of Odetti Nikou Petridi Anonymos Kapnemboriki AE
v. Athanasias Simou and others on the following                      Reference for a preliminary ruling by the Supremo Tribunal
questions :                                                          Administrativo ( Pleno da Secção do Contencioso
                                                                     Tributário ) by judgment of that court of 10 July 1996 in the
1 . Is Council Regulation ( EEC ) No 1 1 14/88 ( 1 ) amending        case of Fabrica de Queijo ERU Portuguesa Limitada against
    Council Regulation ( EEC ) No 727/70 ( 2 ) valid,                                 Subdirector-Geral das Alfandegas
    inasmuch as it provides that, in the event of the                                           ( Case C-325 /96 )
    maximum guaranteed quantity for the production of
                                                                                                  ( 96/C 354/39 )
    leaf tobacco in the whole of the Community being
    exceeded , the intervention prices and premiums are to
    be reduced, generally and without distinction, and               Reference has been made to the Court of Justice of the
    without there being any relation between the price               European Communities by judgment of the Supremo
    reduction and whether the producer was guilty of an              Tribunal Administrativo ( Pleno da Secção do Contencioso
    overrun in production or not ?                                   Tributário ) [ Supreme Administrative Court ( Division for
                                                                     Fiscal Matters sitting in plenary session )] of 10 July 1996 ,
                                                                     which was received at the Court Registry on 4 October
2 . Are Regulations ( EEC ) No 1251 /89 (■') and 1252/89 ( 4 )       1996 , for a preliminary ruling in the case of Fabrica de
    valid as regards the laying down of maximum                      Queijo ERU Portuguesa Limitada against Subdirector-Geral
    guaranteed quantities for the Tsebelia tobacco variety of        das Alfandegas ( Deputy Director General of Customs ) on
    the 1989 harvest and does the application thereof                the following questions :
    infringe the general principles of the prohibition of the
    retroactive application of Community legislation , of the
    protection of the legitimate expectations of producers           1 . Should Article 28 of Council Regulation ( EEC )
    and purchasers and processors of tobacco, and the                       No 3677/86 ( 1 ) of 24 November 1986 be interpreted as
    principle of legal certainty ?                                          meaning that the six-month time-limit prescribed
                                                                            therein cannot be extended ?
3 . If the reply to the preceding question is affirmative, then
                                                                     2 . Or should that provision instead by interpreted as
    in view of the finding by the Commission of actual
                                                                            meaning that the general rule for granting extensions
    overproduction and an infringement by 44,1 % of the
                                                                            provided for in Article 27 of that Regulation and in the
    maximum guaranteed quantities of the Tsebelia and
                                                                             second subparagraph of Article 14 ( 2 ) of Council
    Mavra varieties of the 1989 harvest, and the imposition                  Regulation ( EEC ) No 1999/85 ( 2 ) of 16 July 1985 is to
    for that reason of a reduction in premium and                            be applied to the said time-limit ?
    intervention price in the abovementioned amount of
    15 % , is Commission Regulation ( EEC ) No 2046/90 ( 5 )
                                                                     (') Council Regulation ( EEC ) No 3677/86 of 24 November 1986
    valid and may we apply, as is contended for by the
                                                                           laying down provisions for the implementation of Regulation
    applicant, clause 8 of the cultivation contracts entered               ( EEC ) No 1999/85 on inward processing relief arrangements
    into      under      Commission       Regulation     ( EEC )           ( OJ No L 351 , 12 . 12 . 1986 , p. 1 ).
    No 4263/8 8 ( 6 ) ? If the prices or the premium are             ( 2 ) OJ No L 188 , 20 . 7 . 1985 , p . 1 .
    adjusted pursuant to Article 4 ( 5 ) of Regulation ( EEC )
    No 727/70, is the contract price to be adjusted in line
    with the change in the price and premiums ?
4 . Are the factors which in 1991 led the Court of Justice in
    Case C-368/89 to annul the regulation laying down                Reference for a preliminary ruling by the Employment
    maximum guaranteed quantities for the 1988 harvest of            Appeal Tribunal, London, by order of that court of
    the Bright variety likewise present in this case in view of      14 August 1996 , in the case of Mrs B. S. Levez against T. H.
    the fact that the Commission made the same mistake in                                Jennings ( Harlow Pools ) Ltd
    delaying the determination of maximum guaranteed                                            ( Case C-326/96 )
    quantities for the 1989 harvest ?                                                             ( 96/C 354/40 )
5 . Finally, in the event that the Court of Justice should rule      Reference has been made to the Court of Justice of the
    that the regulations in question are valid, then who is          European Communities by an order of the Employment
 ---pagebreak--- 23 . 11 . 96           EN                 Official Journal of the European Communities                                 No C 354/21
Appeal Tribunal, London, of 14 August 1996, which was                Action brought on 7 October 1996 by the Commission
received at the Court Registry on 4 October 1996 , for a             of the European Communities against the Austrian
preliminary ruling in the case of Mrs B. S. Levez against                                         Republic
T. H. Jennings ( Harlow Pools ) Ltd, on the following                                       ( Case C-328/96 )
questions :
                                                                                              ( 96/C 354/41 )
                                                                     An action against the Austrian Republic was brought before
1 . Is it compatible with Community law to apply, to a               the Court of Justice of the European Communities on
     claim for equal pay for equal work without                      7 October 1996 by the Commission of the European
     discrimination on grounds of sex, a rule of national law        Communities , represented by Claudia Schmidt and Hendrik
     which limits a claimant's entitlement to arrears of             van Lier, of its Legal Service, acting as Agents , with an
     remuneration or damages for breach of the principle of          address for service in Luxembourg at the office of C. Gomez
     equal pay to a period of two years prior to the date on         de la Cruz, of its Legal Service, Wagner Centre,
     which the proceedings were instituted, in circumstances         Kirchberg .
     where :
                                                                     The Commission claims that the Court should :
     ( a ) that rule of national law applies to all claims for
           equal pay without sex discrimination , but to no          — declare that the Austrian Republic has failed to fulfil its
           other claims;                                                 obligations under Council Directives 93/37/EEC ( ] ) and
                                                                         89/665/EEC ( 2 ) and under Article 30 of the EC Treaty in
                                                                         connection with the new building for the Lower
                                                                         Austrian St Polten Landhaus- und Kulturbezirk in
     ( b ) rules which are in this respect more favourable to            awarding the contracts, which were awarded in the
           claimants are applied to other claims in the field of         period before 6 February 1996 but, on 7 March 1996 ,
           employment law, including claims in respect of                had not yet been performed or could reasonably have
           breach of the contract of employment, racial                  been unwound ;
           discrimination in pay, unlawful deduction from
           wages, and sex discrimination in matters other than
                                                                     — order the Austrian Republic to pay the costs .
           pay ;
                                                                     Pleas in law and main arguments adduced in support:
     ( c ) the national court has no discretion to extend the
           two-year period in any circumstance , even where a        The Commission points out that, from the time of its
           claimant was delayed in bringing her claim because        accession to the EEA Agreement and, a forteriori, from the
           her employer deliberately misrepresented to her the       date of its accession to the European Union, the Austrian
           level of remuneration received by men performing          Republic had to comply with European legislation including
           like work to her own ?                                    the directives on the award of public contracts . It states as
                                                                     follows with regard to the individual infringements :
                                                                     — Infringement of Council Directive 93/37/EEC ( Directive
2 . In particular, having regard to the consistent case-law of           on coordination of public works contracts ): the
     the Court that rights conferred by the direct effect of             Niederosterreichische Landeshauptstadt Planungs­
     Community law are to be exercised under the conditions              gesellschaft mbH ('Noplan ') relied at the material time
     determined by national law, provided inter alia that                on its procurement measures 'Allgemeine Angebots- und
     those conditions are no less favourable than those                  Vertragsbestimmungen' [ General Tendering and
     relating to similar domestic actions, how is the                    Contract Conditions , ' AAVB '] in the version of
     expression ' similar domestic actions' to be interpreted in         1 January 1995 and therefore did not comply either with
     the case of a claim for equal pay in circumstance where             the advertising rules ( Article 1 1 of the Directive ) or with
     the conditions laid down by national legislation                    the obligation to inform unsuccessful tenderers
      implementing the principle of equal pay differ from                ( Article 8 of the Directive ). In at least one award
      those laid down by other national legislation in the field         procedure , Noplan disregarded the provisions of the
      of employment law, including legislation relating to               directive by setting out in the tender documents a
      breach of the contract of employment, racial                       particular specification favouring 'Unix products',
      discrimination, unlawful deductions from wages , and               which is contrary to Article 10 ( 6 ) of the Directive .
      sex discrimination in matters other than pay ?                     Lastly, the contracts in question were awarded without
                                                                         ( a ) complying with the criteria for qualitative selection
                                                                         set out in the Directive ( e.g. the grounds for exclusion set
                                                                         forth in Article 24 ) when considering whether a given
                                                                         undertaking qualified to take part in the tender and ( b )
                                                                         applying the criteria listed in Article 30 for the award of
                                                                         contracts .