CELEX: C1997/199/07
Language: en
Date: 1997-06-28 00:00:00
Title: JUDGMENT OF THE COURT of 22 April 1997 in Case C-66/95 (reference for a preliminary ruling from the High Court of Justice, Queen's Bench Division): The Queen v. Secretary of State for Social Security, ex parte: Eunice Sutton (Directive 79/7/EEC - Equal treatment for men and women in matters of social security - Responsibility of a Member State for an infringement of Community law - Right to receive interest on arrears of social security benefits)

No C 199/4             EN                   Official Journal of the European Communities                                    28 . 6 . 97
     Customs Tariff (and under subheading 3505 10 50 of                1 . The first paragraph of Article 7 of Decision No 1 /80
     the combined nomenclature) is primarily dependent on                  of 19 September 1980 on the development of the
     its acetyl content and thus on its degree of                          Association, adopted by the Association Council
     esterification. Nevertheless, it is for the national court            established by the Association Agreement between the
     to determine whether the nature of the esterification                 European Economic Community and Turkey, does not
     does not amount to an alteration of the potato starch                 in principle preclude the competent authorities of a
     such that it no longer corresponds qualitatively to                   Member State from requiring that the family members
     native potato starch.                                                 of a Turkish worker, referred to by that provision, live
                                                                           with him for the period of three years prescribed by
                                                                           the first indent of that Article in order to be entitled to
2 . A maximum acetyl content of between 0,61% and                          reside in that Member State. There may however be
     0,74% by weight of esterified potato starch does not                  objective reasons to justify the family member
     preclude its being classified under heading 11.08 A IV                concerned living apart from the Turkish migrant
     of the Common Customs Tariff and under subheading                     worker.
      1108 13 00 of the combined nomenclature.
(') OJ No C 268 , 14 . 10 . 1995 .                                     2 . The first indent of the first paragraph of Article 7 of
                                                                           Decision No 1 /80 is to be interpreted as meaning that
                                                                           the family member concerned is in principle required
                                                                           to reside uninterruptedly for three years in the host
                                                                           Member State. However, account must be taken, for
                                                                           the purpose of calculating the three-year period of
                                                                           legal residence within the meaning of that provision,
                JUDGMENT OF THE COURT                                      of an involuntary stay of less than six months by the
                                                                           person concerned in his country of origin. The same
                         ( Sixth Chamber)                                  applies to the period during which the person
                        of 17 April 1997                                    concerned was not in possession of a valid residence
                                                                           permit, where the competent authorities of the host
in Case C-351/95 (reference for a preliminary ruling from                   Member State did not claim on that ground that the
the Bayerisches Verwaltungsgericht Miinchen): Selma                        person concerned was not legally resident within
                 Kadiman v. Freistaat Bayern (')                            national territory, but on the contrary issued a new
                                                                            residence permit to him.
(EEC-Turkey Association Agreement — Decision of the
Association Council — Free movement of workers —
Member of a worker's family — Extension of residence                   (') OJ No C 16,20 . 1 . 1996 .
permit — Conditions — Family unity — Legal residence
for three years — Calculation in the event of
                            interruptions)
                            ( 97/C 199/06 )
                 (Language of the case: German)                                       JUDGMENT OF THE COURT
                                                                                               of 22 April 1997
                                                                       in Case C-66/95 (reference for a preliminary ruling from
   (Provisional translation; the definitive translation will be        the High Court of Justice, Queen's Bench Division): The
           published in the European Court Reports)                     Queen v. Secretary of State for Social Security, ex parte:
                                                                                               Eunice Sutton ( 1 )
 In Case C-351 /95 : reference to the Court under Article 177           (Directive 79/7/EEC — Equal treatment for men and
 of the EC Treaty by the Bayerisches Verwaltungsgericht                 women in matters of social security — Responsibility of a
 Miinchen ( Germany ) for a preliminary ruling in the                   Member State for an infringement of Community law —
 proceedings pending before that court between Selma                    Right to receive interest on arrears of social security
 Kadiman and Freistaat Bayern — on the interpretation of                                             benefits)
 the first paragraph of Article 7 of Decision No 1 /80 of the
 Association Council of 19 September 1980 on the                                                 ( 97/C 199/07 )
 development of the Association, adopted by the
 Association Council established by the Association
 Agreement between the European Economic Community                                     (Language of the case: English)
 and Turkey — the Court ( Sixth Chamber ), composed of:
 G. F. Mancini , President of the Chamber, J. L. Murray,
 P. J. G. Kapteyn, H. Ragnemalm and R. Schintgen                        In Case C-66/95 : reference to the Court under Article 177
 ( Rapporteur ), Judges; M. B. Elmer, Advocate-General; D.              of the EC Treaty from the High Court of Justice of
 Louterman-Hubeau, Principal Administrator for the                      England and Wales, Queen's Bench Division, for a
 Registrar, has given a judgment on 17 April 1997, in                   preliminary ruling in the proceedings pending before that
 which it has ruled :                                                   court between The Queen v. Secretary of State for Social
 ---pagebreak--- 28 . 6 . 97            EN                  Official Journal of the European Communities                                 No C 199/5
Security, ex parte: Eunice Sutton — on the interpretation             proceedings pending before that court between Nils
of Community law in regard to the right to obtain interest            Draehmpaehl and Urania Immobilienservice oHG — on
on arrears of a social security benefit falling within the            the interpretation of Council Directive 76/207/EEC of
scope of Council Directive 79/7/EEC of 19 December                    9 February 1976 on the implementation of the principle of
 1978 on the progressive implementation of the principle              equal treatment for men and women as regards access to
of equal treatment for men and women in matters of                    employment, vocational training and promotion, and
social security ( OJ No L 6, 10 . 1 . 1979 , p. 24 ) — the            working conditions ( OJ No L 39, 14 . 2 . 1976, p. 40 ) —
Court, composed of: G. C. Rodriguez Iglesias, President,              the Court, composed of: G. C. Rodriguez Iglesias,
G. E Mancini ( Rapporteur), J. C. Moitinho de Almeida                 President, G. F. Mancini ( Rapporteur ), J. C. Moitinho de
and L. Sevon ( Presidents of Chambers ), P. J. G. Kapteyn,            Almeida and L. Sevon ( Presidents of Chambers ), C. N.
C. Gulmann, D. A. O. Edward, J. -P. Puissochet, G.                    Kakouris, P. J. G. Kapteyn, C. Gulmann, G. Hirsch, H.
Hirsch, P. Jann and H. Ragnemalm, Judges; P. Leger,                   Ragnemalm, M. Wathelet and R. Schintgen, Judges; P.
Advocate-General; H. A. Riihl, Principal Administrator,               Leger, Advocate-General; H. von Holstein, Deputy
for the Registrar, has given a judgment on 22 April 1997,             Registrar, for the Registrar, has given a judgment on
in which it has ruled :                                               22 April 1997, in which it has ruled:
Article 6 of Council Directive 79/7/EEC of 19 December                1 . When a Member State chooses to penalize, under rules
1978 on the progressive implementation of the principle                   governing civil liability, breach of the prohibition of
of equal treatment for men and women in matter of social                  discrimination, Council Directive 76/207/EEC of
security does not require that an individual should be able               9 February 1976 on the implementation of the
to obtain interest on arrears of a social security benefit                principle of equal treatment for men and women as
such as invalid care allowance, when the delay in payment                 regards access to employment, vocational training and
of the benefit is the result of discrimination prohibited by              promotion, and working conditions, and, in particular,
Directive 79/7. However, a Member State is required to                    Articles 2 (1 ) and 3 (1 ) thereof, preclude provisions of
make reparation for the loss and damage caused to an                      domestic law which make reparation of damage
individual as a result of the breach of Community law.                    suffered as a result of discrimination on grounds of
Where the conditions for State liability are fulfilled, it is             sex in the making of an appointment subject to the
for the national court to apply that principle.                           requirement of fault.
O OJ No C 119, 13 . 5 . 1995 .
                                                                      2 . Directive 76/207/EEC does not preclude provisions of
                                                                          domestic law which prescribe an upper limit of three
                                                                          months ' salary for the amount of compensation which
                                                                          may be claimed by an applicant where the employer
                                                                          can prove that, because the applicant engaged had
                                                                          superior qualifications, the unsuccessful applicant
                JUDGMENT OF THE COURT                                     would not have obtained the vacant position even if
                                                                          there had been no discrimination in the selection
                        of 22 April 1997                                  process. In contrast, the Directive precludes provisions
                                                                          of domestic law which, unlike other provisions of
in Case C-l 80/95 (reference for a preliminary ruling from                domestic civil and labour law, prescribe an upper limit
the Arbeitsgericht Hamburg ): Nils Draehmpaehl v. Urania                  of three months ' salary for the amount of
                   Immobilienservice oHG (')                              compensation which may be claimed by an applicant
(Social policy — Equal treatment for men and women —                      discriminated against on grounds of sex in the making
Directive 76/207/EEC — Right to reparation in the event                   of an appointment where that applicant would have
of discrimination as regards access to employment —                       obtained the vacant position if the selection process
                                                                          had been carried out without discrimination .
Choice of sanctions by the Member States — Setting of a
         ceiling for aggregate of compensation awards)
                          ( 97IC 199/08 )
                                                                      3 . Directive 76/207/EEC precludes provisions of
                                                                          domestic law which, unlike other provisions of
                                                                          domestic civil and labour law, impose a ceiling of six
                 (Language of the case: German)                           months ' earnings of the aggregate amount of
                                                                          compensation which, where several applicants claim
                                                                          compensation, may be claimed by applicants who have
                                                                          been discriminated against on grounds of their sex in
  (Provisional translation; the definitive translation will be            the making of an appointment.
           published in the European Court Reports)
                                                                      H OJ No C 208 , 12 . 8 . 1995 .
In Case C-l 80/95 : reference to the Court under Article 177
of the EC Treaty from the Arbeitsgericht ( Labour Court)
Hamburg ( Germany ) for a preliminary ruling in the