CELEX: C1998/234/40
Language: en
Date: 1998-07-25 00:00:00
Title: Reference for a preliminary ruling from the Landesarbeitsgericht (Regional Labour Court) Mecklenburg-Vorpommern by order of that court of 16 April 1998 in the case of Silke-Karin Mahlburg v Land Mecklenburg-Vorpommern (Case C-207/98)

25.7.98                 EN                 Official Journal of the European Communities                                C 234/21
     naturally used predominantly by goods vehicles in                Reference for a preliminary ruling from the Landesarbeits-
     regional and local traffic, registered in Austria. For           gericht (Regional Labour Court) Mecklenburg-Vorpom-
     traffic on those part sections, significantly, there has         mern by order of that court of 16 April 1998 in the case of
     not even been an adjustment for inflation.                        Silke-Karin Mahlburg v Land Mecklenburg-Vorpommern
                                                                                             (Case C-207/98)
                                                                                              (98/C 234/40)
     There is also an indirect difference of treatment on
     grounds of the nationality of the carrier in the fact
     that the two toll increases together apply only to
     goods vehicles of more than three axles, whereas for
     goods vehicles of up to three axles no toll increases            Reference has been made to the Court of Justice of the
     have been introduced even for the whole Brenner                  European Communities by an order of the Landesarbeits-
     motorway route, since in the latter category vehicles of         gericht Mecklenburg-Vorpommern of 16 April 1998,
     Austrian registration are clearly dominant. The                  which was received at the Court Registry on 2 June 1998,
     different treatment cannot be justified on the basis of          for a preliminary ruling in the case of Silke-Karin
     greater wear on the roads, since not only the number             Mahlburg v Land Mecklenburg-Vorpommern on the
     of axles but also factors such as the total tonnage in           following question:
     proportion to the number of axles, the axle load and
     the suspension system of the driving axles play a
     decisive role in this respect.
                                                                      Is there unlawful discrimination on grounds of sex within
                                                                      the meaning of Article 2(1) of Directive 76/207/EEC of
                                                                      9 February 1976 (1) where an employer does not employ
     Finally, the Brenner motorway toll system also                   an applicant in a vacant post, which she is qualified to
     indirectly differentiates according to the origin and            hold, because she is pregnant and cannot from the outset
     destination of goods vehicles. The imposition of quite           and for the duration of her pregnancy be employed in the
     disproportionately high tolls on the whole route as              post, which is intended to be occupied permanently,
     opposed to the part sections affects especially transit          because of a prohibition on employment under the
     traffic, that is, traffic whose origin and destination are       Mutterschutzgesetz (Maternity Law)?
     both outside Austria. The converse applies to the
     exemption from the toll increase of goods vehicles of
                                                                      (1) OJ L 39 of 14.2.1976, p. 40.
     not more than three axles.
Ð Infringement of Article 7(h) of the directive: Under
     Article 7(h) of the directive, toll increases must be
     related to increased costs of the toll roads themselves.
     In the present case this is quite evidently the case only
     to a very limited extent. The operating company's                Reference for a preliminary ruling from the Landgericht
     expenditure on the Brenner motorway, according to                Potsdam by order of that court of 27 April 1998 in the
     information from the Austrian Government, has partly             case of Berliner Kindl Brauerei AG against Andreas
     fallen considerably in recent years, yet in the same                                          Siepert
     period markedly higher toll income has been received.
                                                                                             (Case C-208/98)
     The      Austrian      Government      wrongly    adduces
     expenditure by the financing company ASFINAG for                                         (98/C 234/41)
     other motorways and expressways in Austria. The
     term network' in Article 7(h) of the directive, in the
     context of the provisions relating to tolls, can only
     mean those roads for whose use tolls are lawfully
     charged. Since Austria levies a general user charge for          Reference has been made to the Court of Justice of the
     motor vehicles with a maximum permitted weight of                European Communities by order of the Landgericht
     not less than 12 tonnes (fourth indent of Article 2 of           Potsdam (Regional Court, Potsdam) of 27 April 1998,
     the directive), that means in the present case only the          received at the Court registry on 2 June 1998, for a
     Brenner motorway itself, in so far as it is to be                preliminary ruling in the case of Berliner Kindl Brauerei
     regarded as a series of bridges, tunnels and mountain           AG v Andreas Siepert on the following question:
     passes'.
(1) OJ L 279 of 12.11.1993, p. 32.                                    Does a contract of guarantee concluded by a natural
(2) [1995] ECR I-1827.                                                person not acting in the course of a trade or profession
                                                                      fall within the scope of Council Directive 87/102/EEC of
                                                                      22 December 1986 for the approximation of the laws,
                                                                      regulations and administrative provisions of the Member
                                                                      States concerning consumer credit (OJ L 42 of 12.2.1987,