CELEX: C2002/109/32
Language: en
Date: 2002-05-04 00:00:00
Title: Case C-4/02: Reference for a preliminary ruling by the Verwaltungsgericht Frankfurt am Main by order of 12 November 2001 in the case of Hilde Schönheit against the City of Frankfurt am Main

C 109/18              EN                   Official Journal of the European Communities                                        4.5.2002
Appeal brought on 6 June 2001 by G. Ojha against the                  Reference for a preliminary ruling by the Landesgericht
judgment delivered on 6 arch 2001 by the First Chamber                für Zivilrechtsachen Vienna by order of that court of
of the Court of First Instance of the European Communi-               12 October 2001 in the case of Prof. Monika Herbstrith v
ties in Case T-77/99 Ojha v Commission of the European                                      Republic of Austria
                         Communities
                                                                                              (Case C-430/01)
                       (Case C-284/01 P)
                                                                                              (2002/C 109/31)
                        (2002/C 109/29)
                                                                      Reference has been made to the Court of Justice of the
                                                                      European Communities by order of the Landesgericht für
                                                                      Zivilrechtssachen Wien (Vienna Higher Civil Court) of
An appeal against the judgment delivered on 6 March 2001              12 October 2001 which was received at the Court Registry on
by the First Chamber of the Court of First Instance of the            6 November 2001, for a preliminary ruling in the case of Prof.
European Communities in Case T-77/99 (1)Ojha v Commission             Monika Herbstrith v Republic of Austria on the following
of the European Communities was brought before the Court              questions:
of Justice of the European Communities on 6 June 2001 by
G. Ojha. By order of 22 November 2001 the Court of Justice            1.    Did the conduct described above, viz. the failure to
(First Chamber) dismissed the appeal and ordered Mr Ojha to                 appoint a candidate despite her professional qualifi-
bear his own costs.                                                         cations, infringe a provision of directly applicable Com-
                                                                            munity law and if so, which provision?
                                                                      2.    If the answer to question 1 is in the affirmative:
(1) OJ C 161 of 2.6.2002, p. 16.
                                                                            Does the infringed provision of directly applicable Com-
                                                                            munity law give the plaintiff in the original proceedings a
                                                                            legal right?
                                                                      3.    If the answer to question 2 is in the affirmative:
                                                                            Does the request for a preliminary ruling provide the
                                                                            European Court of Justice with all the information it needs
                                                                            to determine whether in the circumstances described as
Appeal brought on 23 July 2001 by Smanor SA and                             to the original proceedings the national body clearly and
Monique and Hubert Ségaud against the order made on                         significantly exceeded its discretionary powers, or does it
4 July 2001 by the First Chamber of the Court of First                      leave it to the Austrian court requesting the preliminary
Instance of the European Communities in Case T-123/01                       ruling to answer this question?
between the parties bringing the present appeal and the
        Commission of the European Communities
                       (Case C-291/01 P)
                        (2002/C 109/30)                               Reference for a preliminary ruling by the Verwaltungsge-
                                                                      richt Frankfurt am Main by order of 12 November 2001
                                                                      in the case of Hilde Schönheit against the City of Frankfurt
                                                                                                  am Main
An appeal against the order made on 4 July 2001 by the First                                    (Case C-4/02)
Chamber of the Court of First Instance of the European
Communities in Case T-123/01 between the parties bringing
the present appeal and the Commission of the European                                         (2002/C 109/32)
Communities was brought before the Court of Justice of the
European Communities on 23 July 2001 by Smanor SA and
Monique and Hubert Ségaud. By order of 22 November 2001
the Court of Justice (First Chamber) dismissed the appeal and         Reference has been made to the Court of Justice of the
ordered each of the applicants to bear their own costs.               European Communities by order of the Verwaltungsgericht
                                                                      (Administrative Court) Frankfurt am Main of 12 November
                                                                      2001, received at the Court Registry on 9 January 2002, for a
                                                                      preliminary ruling in the case of Hilde Schönheit against the
                                                                      City of Frankfurt am Main on the following questions:
 ---pagebreak--- 4.5.2002              EN                     Official Journal of the European Communities                                        C 109/19
1.   Is the grant of an old-age pension under the provisions            6.   Can the discrimination which may initially be established
     of the German law on pensions for civil servants subject                in regard to calculation of the pensions of older part-time
     to Article 119 of the EC Treaty, now superseded by                      civil servants as a proportion of final salary be justified in
     Article 141(1) and (2) EC, in conjunction with Directive                the nature of a legitimate aim as necessary where that
     86/378/EEC (1), or to the provisions of Directive                       discrimination is intended, as it were, to offset a minimum
     79/7/EEC (2)?                                                           pension acquired during the first ten years of service with
                                                                             no account being taken of the reduction in working time,
                                                                             although the benefits of civil servants’ pensions are met
                                                                             solely from general budgetary resources without any
                                                                             contribution by female officials? As justification for
                                                                             necessity, if appropriate on an ancillary basis, can refer-
                                                                             ence be made to the fact that pension benefits are in the
2.   Do benefits under the law on pensions for civil servants                nature of maintenance support and to their characteristic
     constitute a scheme under Article 6(1)(h) of Directive                  as a traditional principle of the professional civil service
     86/378/EEC with the consequence that, irrespective of                   under Article 33(5) of the Basic Law (Grundgesetz)?
     financing by budgetary resources, it is legitimate to take
     into account actuarial factors or analogous matters in
     order to differentiate levels of benefit?
3.   Are the matters required to justify the indirect discrimi-
     nation on the ground of sex initially established under
                                                                        7.   If such discrimination is deemed to be necessary as
     Article 2(2) of Directive 97/80/EC (3) applicable in the
                                                                             determined under Question 6, can a reduction in the rate
     case of Article 119 of the EC Treaty (now Article 141(1)
                                                                             of pension for older female and male officials with
     and (2) EC, irrespective of whether a question arises in
                                                                             entitlement to benefits far above the minimum pension
     judicial proceedings as to relaxation of the burden of
                                                                             in respect of at least 10 reckonable years of service be
     proof or whether that question is of no significance under
                                                                             still regarded as reasonable (proportionate), if the amount
     the principle applicable to judicial proceedings of official
                                                                             of such reduction is calculated on a linear basis by
     establishment of facts?
                                                                             reference not only to the extent of reduced working time
                                                                             but also to the duration of full-time employment in
                                                                             relation to that of part-time employment although,
                                                                             for older female and male civil servants, the possibly
                                                                             disproportionately favourable grant of a minimum pen-
                                                                             sion acquired without account being taken of the
4.   Is an apparently neutral criterion in a legal provision to              reduction of their working time is no longer possible?
     be judged as to its necessity solely on the basis of the                Would it not in this context be (more) reasonable to
     motives and grounds for enactment which are apparent                    abandon the disproportionate reduction in the rate of
     from the legislative process, in particular where the                   pension for lifelong and more senior female and male
     existence of such grounds is documented in the procedure                officials and instead for there merely to be a proportionate
     leading to adoption of the legislation and demonstrably                 reduction in the minimum pension?
     constituted the relevant reason for the enactment?
5.   In so far as regard may in addition (Q.4) also be had to
     other legitimate aims of the legislation as justificatory
     grounds within the meaning of Article 2(2) of Directive
     97/80/EC, or under the case law of the Court of Justice            8.   Where the numbers of budgetary and established posts
     on the establishment of indirect discrimination on the                  remain unchanged, can additional personnel costs
     ground of sex, can a national court in that connection of               incurred in the recruitment of additional persons by an
     its own motion establish legitimate aims for a provision                expansion of part-time employment, in contrast to the
     of law and in a proper case use them to justify a                       hitherto predominant full-time employment, justify the
     distinguishing criterion, in particular where its reasoning             necessity of imposing these costs on part-time employees
     in that regard is founded on considerations inherent                    by way of a disproportionate reduction in their rate of
     in the legal system? Can it also do so, where such                      pension, as occurred under the second and third clauses
     considerations are not discernibly reflected in the grounds             of the first sentence of Paragraph 14(1) of the BeamtenVG
     for the enactment documented in the course of the                       in the version thereof applicable until 31 December
     legislative procedure?                                                  1991?
 ---pagebreak--- C 109/20              EN                     Official Journal of the European Communities                                        4.5.2002
9.   Is it reasonable for such costs to be taken into account as        4.   Is an apparently neutral criterion in a legal provision to
     a matter of necessity (Q. 8) if the burden of additional                be judged as to its necessity solely on the basis of the
     staff-administration costs is imposed solely on earlier                 motives and grounds for enactment which are apparent
     part-time employees, hence predominantly women, even                    from the legislative process, in particular where the
     though the expansion of part-time employment oppor-                     existence of such grounds is documented in the procedure
     tunities at the time of the legislative amendment in that               leading to adoption of the legislation and demonstrably
     regard as a matter of priority pursued the objective of                 constituted the relevant reason for the enactment?
     reducing general unemployment by the partial absorption
     of surplus male and female applicants to the public
     service?
                                                                        5.   In so far as regard may in addition (Q.4) also be had to
                                                                             other legitimate aims of the legislation as justificatory
(1) OJ L 225, p. 40.                                                         grounds within the meaning of Article 2(2) of Directive
(2) OJ L 6, p. 24.                                                           97/80/EC, or under the case law of the Court of Justice
(3) OJ L 14, p. 6.                                                           on the establishment of indirect discrimination on the
                                                                             ground of sex, can a national court in that connection of
                                                                             its own motion establish legitimate aims for a provision
                                                                             of law and in a proper case use them to justify a
                                                                             distinguishing criterion, in particular where its reasoning
                                                                             in that regard is founded on considerations inherent
                                                                             in the legal system? Can it also do so, where such
                                                                             considerations are not discernibly reflected in the grounds
Reference for a preliminary ruling by the Verwaltungsge-                     for the enactment documented in the course of the
richt Frankfurt am Main by order of 12 November 2001                         legislative procedure?
      in the case of Silvia Becker against Land Hessen
                          (Case C-5/02)                                 6.   Can the discrimination which may initially be established
                                                                             in regard to calculation of the pensions of older part-time
                        (2002/C 109/33)                                      civil servants as a proportion of final salary be justified in
                                                                             the nature of a legitimate aim as necessary where that
                                                                             discrimination is intended, as it were, to offset a minimum
                                                                             pension acquired during the first ten years of service with
                                                                             no account being taken of the reduction in working time,
Reference has been made to the Court of Justice of the
                                                                             although the benefits of civil servants’ pensions are met
European Communities by order of the Verwaltungsgericht
                                                                             solely from general budgetary resources without any
(Administrative Court) Frankfurt am Main of 12 November
                                                                             contribution by female officials? As justification for
2001, received at the Court Registry on 10 January 2002, for
                                                                             necessity, if appropriate on an ancillary basis, can refer-
a preliminary ruling in the case of Silvia Becker against Land
                                                                             ence be made to the fact that pension benefits are in the
Hessen on the following questions:
                                                                             nature of maintenance support and to their characteristic
                                                                             as a traditional principle of the professional civil service
1.   Is the grant of an old-age pension under the provisions                 under Article 33(5) of the Basic Law (Grundgesetz)?
     of the German law on pensions for civil servants subject
     to Article 119 of the EC Treaty, now superseded by
     Article 141(1) and (2) EC, in conjunction with Directive
     86/378/EEC (1), or to the provisions of Directive
                                                                        7.   If such discrimination is deemed to be necessary as
     79/7/EEC (2)?
                                                                             determined under Question 6, can a reduction in the rate
                                                                             of pension for older female and male officials with
2.   Do benefits under the law on pensions for civil servants                entitlement to benefits far above the minimum pension
     constitute a scheme under Article 6(1)(h) of Directive                  in respect of at least 10 reckonable years of service be
     86/378/EEC with the consequence that, irrespective of                   still regarded as reasonable (proportionate), if the amount
     financing by budgetary resources, it is legitimate to take              of such reduction is calculated on a linear basis by
     into account actuarial factors or analogous matters in                  reference not only to the extent of reduced working time
     order to differentiate levels of benefit?                               but also to the duration of full-time employment in
                                                                             relation to that of part-time employment although,
3.   Are the matters required to justify the indirect discrimi-              for older female and male civil servants, the possibly
     nation on the ground of sex initially established under                 disproportionately favourable grant of a minimum pen-
     Article 2(2) of Directive 97/80/EC (3) applicable in the                sion acquired without account being taken of the
     case of Article 119 of the EC Treaty (now Article 141(1)                reduction of their working time is no longer possible?
     and (2) EC, irrespective of whether a question arises in                Would it not in this context be (more) reasonable to
     judicial proceedings as to relaxation of the burden of                  abandon the disproportionate reduction in the rate of
     proof or whether that question is of no significance under              pension for lifelong and more senior female and male
     the principle applicable to judicial proceedings of official            officials and instead for there merely to be a proportionate
     establishment of facts?                                                 reduction in the minimum pension?