CELEX: C1999/136/19
Language: en
Date: 1999-05-15 00:00:00
Title: Case C-79/99: Reference for a preliminary ruling from the Verwaltungsgericht Frankfurt am Main, by order of that court of 18 January 1999 in the case of Julia Schnorbus v Land Hessen

15.5.1999             EN                    Official Journal of the European Communities                                        C 136/11
Action brought on 3 March 1999 by the Commission of                    (Administrative Court) Frankfurt am Main of 18 January 1999,
 the European Communities against the French Republic                  which was received at the Court Registry on 4 March 1999,
                                                                       for a preliminary ruling in the case of Julia Schnorbus v Land
                                                                       Hessen on the following questions:
                         (Case C-76/99)
                                                                       1. Under Sections 24 (2) JAG and 14(a) JAO, where a decision
                        (1999/C 136/18)
                                                                           concerning the admission of applicants to practical legal
                                                                           training is required because the number of applicants
An action against the French Republic was brought before the               exceeds the number of training places, an applicant who
Court of Justice of the European Communities on 3 March                    has completed a duty of service which is only obligatory
1999 by the Commission of the European Communities,                        on men (military or substitute service pursuant to Article
represented by Enrico Traversa, Legal Adviser, acting as Agent,            12 a GG) is to be immediately admitted to the training and
assisted by Nicole Coutrelis, of the Paris Bar, with an address            does not have to satisfy any further requirements in that
for service in Luxembourg at the office of Carlos Gómez de la             regard, whereas the admission of other applicants (female
Cruz, Wagner Centre, Kirchberg.                                            and male) may be deferred by up to 12 months. Does such
                                                                           a rule fall within the scope of Directive 76/207/EEC of 9
                                                                           February 1976 on the implementation of the principle of
The Commission of the European Communities claims that                     equal treatment for men and women as regards access to
the Court should:                                                          employment, vocational training and promotion, and
                                                                           working conditions (1)?
— declare that, by levying VAT on fixed allowances for the
    taking of medical samples for medical analysis, the French
    Republic has failed to fulfil its obligations under Article        2. If Question 1 is to be answered in the affirmative, then:
    13A(1)(b) of Council Directive 77/388/EEC (the Sixth VAT
    Directive) (1);                                                        Does such a rule which, insofar as, exclusively in regard to
                                                                           performance of the duty of service, it results in the
— order the French Republic to pay the costs.                              preferential admission of male applicants to practical legal
                                                                           training, amount to direct discrimination on grounds of
                                                                           sex within the meaning of Article 2(1) of Directive
Pleas in law and main arguments                                            76/207/EEC?
In the Commission’s view, the term ‘activities...closely related’      3. If Question 2 is to be answered in the negative:
to medical care includes the despatch of a sample by the
laboratory which has taken it to another, more specialised                 Does the rule cause indirect discrimination?
laboratory which is the only laboratory authorised under the
national rules to analyse the sample in question. It follows that
the exemption laid down by Article 13A(1)(b) of the Sixth              4. Does the fact that the said rule automatically results in the
Directive must apply to fixed allowances payable under those               preferential admission of men to training without a
rules by the specialised laboratory to the laboratory by which             decision on the matter being subject to an assessment of
the sample was taken. The distinction drawn in France, for the             the individual circumstances or of other relevant factors
purposes of the VAT system, between ordinary analyses and                  meriting consideration in the interests of the remaining
special analyses offends against the principles of neutrality and          applicants in itself preclude justification of the rule for the
uniformity which are applicable to intra-Community VAT.                    purposes of Article 2(4) of Directive 76/207/EEC because
                                                                           it is to that extent more than a measure to promote equal
                                                                           opportunity?
(1) OJ L 145, 13.6.1977, p. 1.
                                                                       5. If question 4 is to be answered in the negative:
                                                                           Is such a rule not justifiable under Article 2(4) of Directive
                                                                           76/207/EEC because only measures which serve to pro-
                                                                           mote equal opportunity in favour of women are permiss-
                                                                           ible thereunder?
Reference for a preliminary ruling from the Verwaltungs-
                                                                       6. If question 5 is to be answered in the negative:
gericht Frankfurt am Main, by order of that court of
18 January 1999 in the case of Julia Schnorbus v Land
                              Hessen                                       Is the mere fact that only men are subject to duties of
                                                                           service under Articles 12 a (1) and (2) GG itself to be
                                                                           regarded as an actual existing inequality within the mean-
                         (Case C-79/99)                                    ing of Article 2(4) of Directive 76/207/EEC which in
                                                                           itself prejudicially affects men’s opportunities in the areas
                        (1999/C 136/19)                                    referred to in Article 1 (1) of the directive, or are the
                                                                           disadvantages faced by women in employment and the
                                                                           risks to which they are in fact exposed on grounds of their
Reference has been made to the Court of Justice of the                     sex also to be taken into account before such a conclusion
European Communities by order of the Verwaltungsgericht                    can be reached?
 ---pagebreak--- C 136/12              EN                    Official Journal of the European Communities                                      15.5.1999
7. Can the rule in Sections 24(2) JAG and 14(a) JAO be                 Reference for a preliminary ruling by the Hoge Raad der
    justified for the purposes of Article 2(4) of Directive            Nederlanden by judgment of that court of 5 March 1999
    76/207/EEC merely on the ground that it counterbalances            in the case of 1. V.O.F. Schieving-Nijstad, 2. W. G.
    disadvantages not faced by women as they are not subject                Schieving and 3. H. Nijstad against R. Groeneveld
    to a duty of service?
                                                                                                (Case C-89/99)
8. Can Article 6 of Directive 76/207/EEC found a right of
    access to training where refusal of access is based on                                     (1999/C 136/22)
    discrimination and there are no other available sanctions
    in the form of rights to compensation?                             Reference has been made to the Court of Justice of the
                                                                       European Communities by judgment of the Hoge Raad der
(1) OJ L 39, 14.2.1976, p. 40.                                         Nederlanden (Supreme Court of the Netherlands) of 5 March
                                                                       1999, received at the Court Registry on 15 March 1999, for a
                                                                       preliminary ruling in the case of 1. V.O.F. Schieving-Nijstad, 2.
                                                                       W. G. Schieving and 3. H. Nijstad against R. Groeneveld on
                                                                       the following questions:
Reference for a preliminary ruling by the Hoge Raad der
                                                                       1. Does Article 50 of the TRIPs Agreement, in particular
Nederlanden by judgment of 26 February 1999 in the case
                                                                           Article 50(6), have direct effect?
of 1. Amsterdamsche Football Club ‘AJAX ’, 2. Langenberg
Participaties B.V., also trading under the name Fan Pro-               2. Is Article 50(6) of the TRIPs Agreement to be interpreted
motions, v 1. S. C. Reule, 2. S. J. Reule, and 3. Fan Image                as meaning that provisional measures, within the meaning
                               B.V.                                        of subparagraphs (1) and (2) of that provision, must
                                                                           automatically lapse by operation of law either in the event
                         (Case C-84/99)                                    that the substantive proceedings are not instituted within
                                                                           the period prescribed for their commencement in the
                        (1999/C 136/20)                                    provisional measure or, in the absence of the determination
Reference has been made to the Court of Justice of the                     of such a period, where the substantive proceedings are
European Communities by judgment of 26 February 1999 of                    not commenced within 20 working days or 31 calendar
the Hoge Raad der Nederlanden (Supreme Court of the                        days (whichever is the longer period); alternatively, in order
Netherlands), which was received at the Court Registry on                  for the provisional measure to lapse, is it (invariably)
9 March 1999, for a preliminary ruling in the case of                      necessary for an appeal to have been lodged by the party
1. Amsterdamsche Football Club ‘AJAX’, 2. Langenberg Partici-              against whom that measure has been ordered?
paties B.V., also trading under the name Fan Promotions, v             3. Where the time-limit within which the substantive pro-
1. S. C. Reule, 2. S. J. Reule, and 3. Fan Image B.V. on the               ceedings must be brought is not prescribed in the pro-
following question: Does Article 50(6) of the TRIPs Agreement              visional measures ordered, does it commence on:
have direct effect?
                                                                           (a) the day after the date on which the court ordered the
                                                                                provisional measure in question; or
                                                                           (b) the day after the date on which the decision ordering
                                                                                the provisional measure was served on the defendant;
Reference for a preliminary ruling by the Tribunal de                           or
Grande Instance, Béthune, by judgment of that court of
24 March 1998 in the case of Roquette Frères SA against                    (c) the day after the date on which the decision ordering
              the Direction des Services Fiscaux                                the provisional measure became definitive and no
                                                                                longer open to challenge; or
                         (Case C-88/99)
                                                                           (d) at any other point in time?
                        (1999/C 136/21)                                4. Where a court orders a provisional measure, must it of its
Reference has been made to the Court of Justice of the                     own motion fix a time-limit within which substantive
European Communities by judgment of the Tribunal de                        proceedings are to be instituted, or may it fix such a
Grande Instance (High Court), Béthune of 24 March 1998,                    time-limit only if an application is made to that effect?
received at the Court Registry on 15 March 1999, for a                 5. Where a court is called upon in appeal proceedings to
preliminary ruling in the case of Roquette Frères SA against               adjudicate on a measure ordered by a lower court in
the Direction des Services Fiscaux (Tax Department). The                   proceedings at first instance, and that appellate court
Tribunal de Grande Instance, Béthune seeks a ruling from the               confirms that measure, is it open to the appellate court to
Court of Justice on the legality of Article 190 of the Livre des           prescribe, either of its own motion or on application by
Procédures Fiscales (Book of Tax Procedures) and, in particular,           one of the parties, a time-limit within the meaning
on the question whether the French Government was entitled,                hereinbefore referred to, if the court seised of the matter at
under Community law, to make a distinction between the date                first instance has not done so?
on which an action became time-barred and the date on which
recovery became time-barred, entailing a difference in the             6. Is Article 50 of the TRIPs Agreement applicable where that
treatment of actions under national law and actions com-                   agreement enters into force in the Contracting State
menced on the basis of a judgment of the Court of Justice of               concerned on a date following the closure of the trial
the European Communities in which a provision of national                  procedure at first instance but before the court seised of
law was found to be illegal.                                               the first-instance proceedings has delivered its decision?