CELEX: C2002/109/33
Language: en
Date: 2002-05-04 00:00:00
Title: Case C-5/02: Reference for a preliminary ruling by the Verwaltungsgericht Frankfurt am Main by order of 12 November 2001 in the case of Silvia Becker against Land Hessen

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?
 ---pagebreak--- 4.5.2002               EN                      Official Journal of the European Communities                                        C 109/21
8.   Where the numbers of budgetary and established posts                 Reference for a preliminary ruling by the Hoge Raad der
     remain unchanged, can additional personnel costs                     Nederlanden by judgment of that Court of 21 December
     incurred in the recruitment of additional persons by an              2001 in the case of Holin Groep B.V. c.s. against Staatsse-
     expansion of part-time employment, in contrast to the                                      cretaris van Financiën
     hitherto predominant full-time employment, justify the
     necessity of imposing these costs on part-time employees
     by way of a disproportionate reduction in their rate of
     pension, as occurred under the second and third clauses                                         (Case C-7/02)
     of the first sentence of Paragraph 14(1) of the BeamtenVG
     in the version thereof applicable until 31 December
     1991?
                                                                                                   (2002/C 109/34)
9.   Is it reasonable for such costs to be taken into account as
     a matter of necessity (Q. 8) if the burden of additional
     staff-administration costs is imposed solely on earlier
     part-time employees, hence predominantly women, even                 Reference has been made to the Court of Justice of the
     though the expansion of part-time employment oppor-                  European Communities by judgment of the Hoge Raad
     tunities at the time of the legislative amendment in that            der Nederlanden (Supreme Court of the Netherlands) of
     regard as a matter of priority pursued the objective of              21 December 2001, received at the Court Registry on 11 Janu-
     reducing general unemployment by the partial absorption              ary 2002, for a preliminary ruling in the case of Holin Groep
     of surplus male and female applicants to the public                  B.V. c.s. against Staatssecretaris van Financiën (State Secretary
     service?                                                             for Finance) on the following question:
                                                                          1.    Do Articles 5(7)(a) and 17 of the Sixth Directive (1). or the
10. Does the Protocol concerning Article 119 of the EC                          European law principles of the protection of legitimate
     Treaty as part of the Treaty on European Union of 1992                     expectations and of legal certainty preclude — in a case
     (OJ 1992 C 191, p. 68) absolutely preclude the detailed                    not involving fraud or abuse or any question of a change
     rules for the inclusion of periods of employment prior to                  in planned use, as mentioned in paragraphs 50 and 51 of
     17 May 1990 from being examined under Article 141(1)                       the judgment of the Court of Justice in Schloßstraße (2)
     and (2) EC (ex Article 119 of the EC Treaty)? Does the                     — the charging of tax on the basis of the abovementioned
     prohibition on such examination also apply where after                     Article 5(7)(a) when a taxable person has deducted VAT
     17 May 1990 the provisions relevant to the inclusion of                    which he has paid for goods delivered, or services
     periods of employment completed before the relevant                        provided, to him with a view to the planned leasing,
     date of 17 May 1990 have been amended but those                            subject to VAT, of a particular immovable property, on
     amendments effect only a partial adjustment in line with                   the simple ground that, as a result of a legislative
     the requirements of Article 119 of the EC Treaty and for                   amendment, the taxable person no longer has the right
     certain categories effect no such favourable adjustment?                   to waive the exemption for that lease?
                                                                          2.    Would an affirmative response to the first question also
11. In determining adherence to the relevant date of 17 May                     apply to a right to deduct arising in the period between
     1990 in the enactment of laws is the date of publication                   notification of the legislative amendment mentioned in
     in the official gazette decisive, or is the matter determined              Question 1 and its entry into force? In other words, in
     by the conclusion of deliberations in the legislative bodies               the event of an affirmative response to Question 1, can
     and indeed even if the law requires the assent of the                      tax still be charged, on the basis of Article 5(7)(a), on the
     Federal Government?                                                        elements of the cost price referred to in Article 11 A(1)(b)
                                                                                of the Sixth Directive which were incurred after that
                                                                                notification date?
(1) OJ 1986 L 225, p. 40.
(2) OJ 1979 L 6, p. 24.                                                   (1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the
                                                                              harmonization of the laws of the Member States relating to
(3) OJ 1997 L 14, p. 6.
                                                                              turnover taxes — Common system of value added tax: uniform
                                                                              basis of assessment (OJ 1977, L 145, p. 1).
                                                                          (2) Judgement of 8.6.2000 in case C-396/98.