CELEX: C2002/202/09
Language: en
Date: 2002-08-24 00:00:00
Title: Case C-215/02: Reference for a preliminary ruling by the Sozialgericht Stuttgart by order of that Court of 4 June 2002 in the case of Karin Müller against Postbeamtenkrankenkasse; Additional party: Bundesversicherungsanstalt für Angestellte

24.8.2002              EN                   Official Journal of the European Communities                                           C 202/7
Appeal brought on 7 June 2002 by ABB Asea Brown                        Misinterpretation of Article 44(1)(c): ABB recognizes that
Boveri Ltd against the judgment delivered on 20 March                  general references to other documents cannot compensate for
2002 by the Fourth Chamber of the Court of First Instance              deficiencies in a party’s application. However, the Tribunal has
of the European Communities in case T-31/99 between                    found a defect neither in the Application nor in ABB’s Reply.
ABB Asea Brown Boveri Ltd and the Commission of the                    ABB thus cannot conceivably have compensated a defective
                    European Communities                               submission by a general reference to the Opinion. Moreover,
                                                                       there is, and the Judgment has established, no basis for relying
                                                                       on Article 44(1)(c) of the Tribunal’s Rules of Procedure by way
                        (Case C-213/02 P)                              of analogy.
                         (2002/C 202/08)                               Misinterpretation of the principle of legitimate expectations:
                                                                       The Judgment fails to recognize that legitimate expectations
                                                                       may arise from the Commission’s fining practice, that the
                                                                       Leniency Notice invites undertakings to rely on these fining
                                                                       practices and that the level of protection of legitimate expec-
An appeal against the judgment delivered on 20 March 2002
                                                                       tations is thereby strengthened, limiting the Commission’s
by the Fourth Chamber of the Court of First Instance of the
                                                                       discretion to at will depart from an established practice.
European Communities in case T-31/99 (1) between ABB Asea
Brown Boveri Ltd and the Commission of the European
Communities, was brought before the Court of Justice of the
European Communities on 7 June 2002 by ABB Brown                       The Judgment misapplies Article 15(2) of Regulation No. 17 (2):
Boveri Ltd, established in Zurich (Switzerland), represented by        The Commission has used the defendant undertakings’ turn-
A. Weitbrecht, M. Bay and S. Seelmann-Eggebert, lawyers, with          over in the products affected by the infringement only in order
an address for service in Luxembourg.                                  to divide these undertakings into four categories; in order to
                                                                       ‘reflect the importance of each firm in the pipe sector’, it has not
                                                                       used the turnover affected by the infringement to determine the
                                                                       gravity of the infringement (before taking into account the
The Appellant claims that the Court should:                            duration, aggravating and attenuating circumstances and the
                                                                       reduction under the Leniency Notice).
(1) set aside Sections 2 and 3 of the operative part of the
      Judgment; and
                                                                       (1) OJ C 121, 1.5.1999, p. 16.
                                                                       (2) of the Council of 6 February 1962, First Regulation implementing
(2) annul Article 3 of the Decision as it relates to the                   Articles 85 and 86 of the Treaty (OJ L 13, 21.2.1962, p. 204 [SE
      Appellant; and                                                       SER1 (59-62) p. 87]).
(3) further reduce the fine imposed on the Appellant by the
      Decision;
      alternatively to points (2) and (3);
(4) refer the case back to the Tribunal for decision in
      accordance with the judgment of the Court of Justice; and
                                                                       Reference for a preliminary ruling by the Sozialgericht
(5) require the Commission to pay the costs of the entire              Stuttgart by order of that Court of 4 June 2002 in the
      proceedings, including those of the Appellant.                   case of Karin Müller against Postbeamtenkrankenkasse;
                                                                       Additional party: Bundesversicherungsanstalt für Ange-
                                                                                                      stellte
Pleas in law and main arguments                                                                  (Case C-215/02)
                                                                                                 (2002/C 202/09)
Misapplication of the Tribunal’s Rules of Procedure leading to
the rejection as inadmissible of the Opinion submitted by ABB
as an annex to its Reply.
                                                                       Reference has been made to the Court of Justice of the
                                                                       European Communities by order of the Sozialgericht Stuttgart
Misinterpretation of Article 48(2): The Judgment fails to              (Social Court, Stuttgart) of 4 June 2002, received at the Court
distinguish between new pleas in law and arguments support-            Registry on 10 June 2002, for a preliminary ruling in the case
ing pleas already raised. The Opinion’s introduction was               of Karin Müller against Postbeamtenkrankenkasse; Additional
admissible because it amplifies a plea raised in the Application       party: Bundesversicherungsanstalt für Angestellte on the fol-
rather than introducing new pleas in law.                              lowing questions:
 ---pagebreak--- C 202/8                EN                    Official Journal of the European Communities                                      24.8.2002
1)    Is a carer within the meaning of Paragraph 44 of                       from the equal pay point of view,
      Volume XI of the Sozialgesetzbuch (German Code of
      Social Law) a worker for the purposes of Article 48 EC                 in the case of a system of pay that awards termination
      and/or Article 1 of Regulation (EEC) No 1408/71 (1)?                   payments to workers essentially based on past loyalty to
                                                                             their employer and graduated according to the length of
      If the answer to Question One is no:                                   their employment in order to tide them over the actual
                                                                             termination of that employment, unless the employment
2)    Where care is provided in the country where the person                 is brought to an end by the worker without good cause,
      reliant on care is insured, does the fact that a carer’s               or if the termination of it is the result of fault on his
      entitlement to social security cover under Paragraph 44                part, whereby individual periods of employment are
      of Volume XI of the Sozialgesetzbuch is conditional on                 categorised as independent and the exclusion of periods
      his or her being resident in that country, as opposed to               of unpaid leave is permitted, if that unpaid leave is taken
      any other Member State, infringe Articles 19, 25 or 28 of              for reasons that are in the worker’s interests and at his or
      Regulation (EEC) No 1408/71, following the Court’s                     her own instigation and if those reasons do not constitute
      decisions in Cases 150/85 (Drake) (2) and C-160/96                     a good cause that would entitle the worker to terminate
      (Molenaar) (3)?                                                        his or her employment and safeguard his or her termin-
                                                                             ation payment,
(1) OJ L 149 [1971] of 5.7.1971, p. 2.
(2) [1986] ECR 1995.                                                         the internal worker group covered by Paragraph 8 APSG
(3) [1998] ECR I-843.                                                        (Group A)
                                                                             is to be compared with that group of female workers
                                                                             who decide, in accordance with Paragraph 15 of the
                                                                             Mutterschutzgesetz (Law on Maternity Benefits, herein-
                                                                             after ‘the MSchG’), to take parental leave (‘childcare leave’)
Reference for a preliminary ruling by the Oberster                           to care for their children without pay after their normal
Gerichtshof by order of that Court of 22 May 2002 in the                     16-week period of ‘maternity leave’ has expired and until,
case of Österreichischer Gewerkschaftsbund, Gewerk-                         at the maximum, the child reaches its second birthday
schaft der Privatangestellten against Wirtschaftskammer                      (Group B)?
                           Österreich
                                                                        3.   Are Article 141 EC and Article 1 of Directive 75/
                        (Case C-220/02)                                      117/EEC to be construed as meaning that, where the
                                                                             differences between the internal worker groups referred
                        (2002/C 202/10)                                      to in Question 2 principally consist of the fact that, in the
                                                                             case of
Reference has been made to the Court of Justice of the                       Group A, ‘men on military service’,
European Communities by order of the Oberster Gerichtshof
(Supreme Court) of 22 May 2002, received at the Court                        1.    there is normally an obligation to ‘report for duty’
Registry on 14 June 2002, for a preliminary ruling in the                          or, in any event, if they should report voluntarily,
case of Österreichischer Gewerkschaftsbund, Gewerkschaft der
Privatangestellten against Wirtschaftskammer Österreich on                  2.    reporting for duty is only permissible in so far as it
the following questions:                                                           is in the public interest, and
1.    Is the term ‘pay’ in Article 141 EC and in Article 1 of                3.    it is normally not possible to perform services under
      Council Directive 75/117/EEC of 10 February 1975 on                          an employment relationship governed by private
      the approximation of the laws of the Member States                           law — even another employment relationship,
      relating to the application of the principle of equal pay
      for men and women (OJ 1975 L 045, p. 19) to be                         whereas, in the case of Group B, ‘unpaid parental leave’,
      construed as meaning that it also encompasses statutory
      provisions of general application, such as Paragraph 8 of              1.    it is left to the individual worker in a particular
      the Bundesgesetz über die Sicherung des Arbeitsplatzes                       employment relationship alone to choose whether
      für zum Präsenz — oder Ausbildungsdienst einberufene                         she wishes to take unpaid parental leave to care for
      oder zum Zivildienst zugewiesene Arbeitnehmer (Federal                       her child and
      law on job security for workers called up for military or
      training service or assigned to alternative civilian service,          2.    whether, during that parental leave and in the time
      hereinafter ‘the APSG’), where, in the public interest,                      available to her after caring for her children, she can
      periods of service in the performance of public duties as                    also undertake work of a limited nature in a private
      defined therein, during which it is generally not possible                   employment relationship,
      to perform services of a private-employment nature, is to
      be taken into account for the purposes of claims under                 those differences constitute sufficient objective justifi-
      employment law calculated according to length of service               cation for the different treatment of those periods for the
      in a private-employment relationship?                                  purposes of claims based on length of service?
2.    Are Article 141 EC and Article 1 of Directive 75/117/
      EEC to be construed as meaning that,