CELEX: C2002/109/36
Language: en
Date: 2002-05-04 00:00:00
Title: Case C-19/02: Reference for a preliminary ruling by the Oberster Gerichtshof by order of that Court of 20 December 2001 in the case of Dr Viktor Hlozek against Roche Diagnostics Gesellschaft mbH

C 109/22                EN                    Official Journal of the European Communities                                       4.5.2002
Reference for a preliminary ruling by the Arbejdsret by                  seamen on board that vessel can be regarded by the vessel’s
order of 25 January 2002 in the case of Danmarks                         owners as having occurred in the flag State, with the result
Rederiforening acting on behalf of DFDS Torline A/S                      that the vessel’s owners can, pursuant to Article 5(3), bring an
against LO Landsorganisation i Sverige, acting on behalf                 action for damages against the trade union in the flag State?
 of SEKO Sjöfolk Facket för Service och Kommunikation
                           (Case C-18/02)
                                                                         (1) 27 September 1968 on jurisdiction and the enforcement of
                                                                             judgments in civil and commercial matters (OJ L 204, 1975,
                          (2002/C 109/35)                                    p. 28) modified by the Convention of 26 May 1989 on the
                                                                             accession of the Kingdom of Spain and the Portuguese Republic
                                                                             with the adjustments made to them by the Convention on the
                                                                             accession of the Kingdom of Denmark, of Ireland and of the
Reference has been made to the Court of Justice of the                       United Kingdom of Great Britain and Northern Ireland and the
European Communities by order of the Arbejdsret (Labour                      adjustments made to them by the Convention on the accession of
Court) of 25 January 2002, received at the Court Registry on                 the Hellenic Republic (OJ L 285, 1989, p. 1).
29 January 2002, for a preliminary ruling in the case of
Danmarks Rederiforening (Danish Association of Shipping
Companies), acting on behalf of DFDS Torline A/S against
LO Landsorganisation i Sverige (Swedish Congress of Trade
Unions), acting on behalf of SEKO Sjöfolk Facket för Service
och Kommunikation (union representing maritime workers
in service and communications sectors) on the following
questions:
Question 1                                                               Reference for a preliminary ruling by the Oberster
                                                                         Gerichtshof by order of that Court of 20 December 2001
                                                                         in the case of Dr Viktor Hlozek against Roche Diagnostics
a)    Must Article 5(3) of the Convention (1) be construed                                       Gesellschaft mbH
      as covering cases concerning the legality of collective
      industrial action for the purpose of securing an agreement
      in a case where any harm which may result from the                                           (Case C-19/02)
      illegality of such collective action gives rise to liability to
      pay compensation under the rules on tort, delict or quasi-
      delict, such that a case concerning the legality of notified
      collective industrial action can be brought before the                                      (2002/C 109/36)
      courts of the place where proceedings may be instituted
      for compensation in respect of any harm resulting from
      that industrial action?
b)    Is it necessary, as the case may be, that any harm incurred        Reference has been made to the Court of Justice of the
      must be a certain or probable consequence of the                   European Communities by order of the Oberster Gerichtshof
      industrial action concerned in itself, or is it sufficient that    (Supreme Court) of 20 December 2001, received at the Court
      that industrial action is a necessary condition governing,         Registry on 29 January 2002, for a preliminary ruling in the
      and may constitute the basis for, sympathy actions which           case of Dr Viktor Hlozek against Roche Diagnostics Gesell-
      will result in harm?                                               schaft mbH on the following questions:
c)    Does it make any difference that implementation of
      notified collective industrial action was, after the proceed-
      ings had been brought, suspended by the notifying party            1.a)     Are Article 141 EC and Article 1 of Council Directive
      until the court’s ruling on the issue of its legality?             75/117/EEC of 10 February 1975 on the approximation of
                                                                         the laws of the Member States relating to the application of
                                                                         the principle of equal pay for men and women (OJ 1975 L 45,
                                                                         p. 19) to be interpreted
Question 2
                                                                         where an employer which dismisses a large group of employees
Must Article 5(3) of the Convention be construed as meaning              as a result of a merger with another company is required, on
that damage resulting from collective industrial action                  account of its social obligation towards the entire workforce,
implemented by a trade union in a country to which a vessel              to agree with the works council a social plan, which is binding
registered in another country (the flag State) sails for the             in relation to the employees, in order to alleviate the effects of
purpose of securing an agreement covering the work of                    dismissal, in particular the risk of age-related unemployment,
 ---pagebreak--- 4.5.2002               EN                     Official Journal of the European Communities                                        C 109/23
as precluding a social plan under which all female employees             3.b)     Is this directive to be interpreted as precluding a social
aged 50 and over at the time of their dismissal and all male             plan under which all female employees aged 50 and over at
employees aged 55 and over at the time of their dismissal are            the time of their dismissal and all male employees aged 55 and
entitled, irrespective of the period of employment, that is to           over at the time of their dismissal are entitled, irrespective of
say with no account being had to any ‘qualification periods’             the period of employment, that is to say with no account
and solely on the basis of age — or to the fact that the risk of         being had to any ‘qualification periods’ and solely on the basis
long-term unemployment for men and for women generally                   of age — or to the fact that the risk of long-term unemploy-
differs according to their age &mdash, to a ‘bridging allowance’         ment for men and for women generally differs according to
amounting to 75 % of their final gross monthly salary for five           their age —, to a ‘bridging allowance’ amounting to 75 % of
years, but at most until they become entitled to a statutory             their final gross monthly salary for five years, but at most until
pension?                                                                 they become entitled to a statutory pension?
1.b)     In particular, is the concept of pay in Article 141 EC
and Article 1 of the directive to be construed as including, in
the case of benefits which are related not to work performed
but solely to membership of a workforce and the social
obligation on the employer, allowance for the risk of long-
term unemployment so that pay must regarded as equal where
— overall — it covers the same degree of risk even though
this risk normally occurs in different age groups in the case of         Reference for a preliminary ruling by the Oberlandesge-
men and women?                                                           richt Innsbruck by order of that Court of 14 January
                                                                         2002 in the case of Petra Engler against Janus Versand
                                                                                                 Gesellschaft m.b.H.
1.c)     Or can, if the concept of ‘pay’ in these provisions after
all covers only the cash benefit as such, the varying risk thus                                     (Case C-27/02)
construed justify different treatment of men and women?
                                                                                                   (2002/C 109/37)
2.     Is the concept of ‘occupational social security schemes’
within the meaning of Article 2(1) of Council Directive
86/378/EEC of 24 July 1986 on the implementation of
the principle of equal treatment for men and women in                    Reference has been made to the Court of Justice of the
occupational social security schemes (OJ 1986 L 225, p. 40),             European Communities by order of the Oberlandesgericht
as amended by Council Directive 96/97/EC of 20 December                  (Higher Regional Court) Innsbruck of 14 January 2002,
1996 (OJ 1996 L 46, p. 20), to be construed as including                 received at the Court Registry on 31 January 2002, for a
bridging allowances in the above sense?                                  preliminary ruling in the case of Petra Engler against Janus
                                                                         Versand Gesellschaft m.b.H. on the following questions:
                                                                         For the purposes of the Brussels Convention on Jurisdiction
Is the concept of the risk of ‘old age, including early retirement’      and the Enforcement of Judgments in Civil and Commercial
in Article 4 of the directive to be construed as including such          Matters of 27 September 1968 (‘the Convention’), does the
‘bridging allowances’?                                                   provision in Paragraph 5j of the Austrian Konsumentenschutz-
                                                                         gesetz (Consumer Protection Law) (‘KSchG’), BGBl. 1979/140,
                                                                         in the version of Paragraph 1(2), of the Austrian Fernabsatz-
                                                                         Gesetz (Distance Selling Law), BGBl. I 1999/185, which entitles
Does the concept of ‘scheme’ in Article 6(1)(c) of the directive         consumers to claim from undertakings in the courts prizes
cover only the question of fulfilment of the requirements for            ostensibly won by them where the undertakings send (or have
entitlement to the bridging allowance or also membership of              sent) them prize notifications or other similar communications
the workforce as a whole?                                                worded so as to give the impression that they have won a
                                                                         particular prize, also constitute:
3.a)     Is Council Directive 76/207/EEC of 9 February 1976              1.    a contractual claim under Article 13(3); or
on the implementation of the principle of equal treatment for
men and women as regards access to employment, vocational                2.    a contractual claim under Article 5(1); or
training and promotion, and working conditions (OJ 1976
L 39, p. 40) to be interpreted to the effect that the ‘bridging
allowance’ described above constitutes a condition governing             3.    a claim in respect of a tort, delict or quasi-delict under
dismissal within the meaning of Article 5 of this directive?                   Article 5(3)