CELEX: C1996/354/41
Language: en
Date: 1996-11-23 00:00:00
Title: Action brought on 7 October 1996 by the Commission of the European Communities against the Austrian Republic (Case C-328/96)

23 . 11 . 96           EN                 Official Journal of the European Communities                                 No C 354/21
Appeal Tribunal, London, of 14 August 1996, which was                Action brought on 7 October 1996 by the Commission
received at the Court Registry on 4 October 1996 , for a             of the European Communities against the Austrian
preliminary ruling in the case of Mrs B. S. Levez against                                         Republic
T. H. Jennings ( Harlow Pools ) Ltd, on the following                                       ( Case C-328/96 )
questions :
                                                                                              ( 96/C 354/41 )
                                                                     An action against the Austrian Republic was brought before
1 . Is it compatible with Community law to apply, to a               the Court of Justice of the European Communities on
     claim for equal pay for equal work without                      7 October 1996 by the Commission of the European
     discrimination on grounds of sex, a rule of national law        Communities , represented by Claudia Schmidt and Hendrik
     which limits a claimant's entitlement to arrears of             van Lier, of its Legal Service, acting as Agents , with an
     remuneration or damages for breach of the principle of          address for service in Luxembourg at the office of C. Gomez
     equal pay to a period of two years prior to the date on         de la Cruz, of its Legal Service, Wagner Centre,
     which the proceedings were instituted, in circumstances         Kirchberg .
     where :
                                                                     The Commission claims that the Court should :
     ( a ) that rule of national law applies to all claims for
           equal pay without sex discrimination , but to no          — declare that the Austrian Republic has failed to fulfil its
           other claims;                                                 obligations under Council Directives 93/37/EEC ( ] ) and
                                                                         89/665/EEC ( 2 ) and under Article 30 of the EC Treaty in
                                                                         connection with the new building for the Lower
                                                                         Austrian St Polten Landhaus- und Kulturbezirk in
     ( b ) rules which are in this respect more favourable to            awarding the contracts, which were awarded in the
           claimants are applied to other claims in the field of         period before 6 February 1996 but, on 7 March 1996 ,
           employment law, including claims in respect of                had not yet been performed or could reasonably have
           breach of the contract of employment, racial                  been unwound ;
           discrimination in pay, unlawful deduction from
           wages, and sex discrimination in matters other than
                                                                     — order the Austrian Republic to pay the costs .
           pay ;
                                                                     Pleas in law and main arguments adduced in support:
     ( c ) the national court has no discretion to extend the
           two-year period in any circumstance , even where a        The Commission points out that, from the time of its
           claimant was delayed in bringing her claim because        accession to the EEA Agreement and, a forteriori, from the
           her employer deliberately misrepresented to her the       date of its accession to the European Union, the Austrian
           level of remuneration received by men performing          Republic had to comply with European legislation including
           like work to her own ?                                    the directives on the award of public contracts . It states as
                                                                     follows with regard to the individual infringements :
                                                                     — Infringement of Council Directive 93/37/EEC ( Directive
2 . In particular, having regard to the consistent case-law of           on coordination of public works contracts ): the
     the Court that rights conferred by the direct effect of             Niederosterreichische Landeshauptstadt Planungs­
     Community law are to be exercised under the conditions              gesellschaft mbH ('Noplan ') relied at the material time
     determined by national law, provided inter alia that                on its procurement measures 'Allgemeine Angebots- und
     those conditions are no less favourable than those                  Vertragsbestimmungen' [ General Tendering and
     relating to similar domestic actions, how is the                    Contract Conditions , ' AAVB '] in the version of
     expression ' similar domestic actions' to be interpreted in         1 January 1995 and therefore did not comply either with
     the case of a claim for equal pay in circumstance where             the advertising rules ( Article 1 1 of the Directive ) or with
     the conditions laid down by national legislation                    the obligation to inform unsuccessful tenderers
      implementing the principle of equal pay differ from                ( Article 8 of the Directive ). In at least one award
      those laid down by other national legislation in the field         procedure , Noplan disregarded the provisions of the
      of employment law, including legislation relating to               directive by setting out in the tender documents a
      breach of the contract of employment, racial                       particular specification favouring 'Unix products',
      discrimination, unlawful deductions from wages , and               which is contrary to Article 10 ( 6 ) of the Directive .
      sex discrimination in matters other than pay ?                     Lastly, the contracts in question were awarded without
                                                                         ( a ) complying with the criteria for qualitative selection
                                                                         set out in the Directive ( e.g. the grounds for exclusion set
                                                                         forth in Article 24 ) when considering whether a given
                                                                         undertaking qualified to take part in the tender and ( b )
                                                                         applying the criteria listed in Article 30 for the award of
                                                                         contracts .
 ---pagebreak---  No C 354/22              EN                   Official Journal of the European Communities                                      23 . 11 . 96
 — Infringement of Article 30 of the EC Treaty: the                       Security Tribunal, Bouches du Rhone] of 1 March 1996 ,
       infringement of Article 10 ( 6 ) of Directive 93/37/EEC            received at the Court Registry on 15 October 1996, for a
       amounts at the same time to an infringement of                     preliminary ruling in the case ofJ. Farias v. Caisse Regionale
       Article 30 of the EC Treaty. The same is true of the               d'Assurance Maladie du Sud-Est [South-East Regional
       preference for Lower Austrian materials and/or                     Health Insurance Fund] on the following question:
       undertakings contained in point 2.10 of the AAVB
       where the tenders involved are of equal value to other             Can a Portuguese national residing in Portugal who reached
       tenders .                                                          the age of 60 on 17 May 1992, and did not receive , in
                                                                          addition to his invalidity pension, supplementary allowance
— Infringement of Directive 88/665/EEC ( directive on                     from the Fonds National de Solidarite [National Solidarity
       review procedures ): contrary to Articles 1 and 2 ( 1 ) ( h )      Fund] solely because he was resident outside France, claim
       of the Directive, point 2.5 of the AAVB excludes ab initio         under Article 2 of Regulation ( EEC ) No 1247/92 ( ] ) that his
       and unconditionally all claims which might arise on the            entitlement was acquired before 1 June 1992 , the date of
       part of contractors in connection with an award                    entry into force of that regulation ?
       procedure .
                                                                          ( 1 ) OJ No L 136 , 19 . 5 . 1992 , p . 1 .
 ( ] ) OJ No L 199 , 9 . 8 . 1993 , p. 54.
 ( 2 ) OJ No L 395 , 30 . 12 . 1989 , p . 33 .
                                                                          Reference for a preliminary ruling from the Pretura
Reference for a preliminary ruling by the Pretura di Roma by              Circondariale di Bolzano, Sezione Distaccata di Vipiteno,
order of that court of 2 October 1996 in the case of 1 .                 by order of that court of 17 August 1996 in the case of
CO.NA.TA. — Consorzio Nazionale Tabacchi Soc. Coop a                     Dilexport S.r.l. v. Amministrazione delle Finanze dello
r.l. and 2 . Agrindustria Sri against AIMA — Azienda di                                                    Stato
           Stato per gli Interventi sul Mercato Agricolo                                             Case C-343/96
                 ( Cases C-332/96 and C-333/96 )                                                      ( 96/C 354/44
                               ( 96/C 354/42 )
                                                                         Reference has been made to the Court of Justice of the
Reference has been made to the Court of Justice of the                   European Communities by an order of the Pretura
European Communities by orders of the Pretura di Roma                    Circondariale di Bolzano, Sezione Distaccata di Vipiteno
[Magistrates Court, Rome] of 2 October 1996 , received at                 [District Magistrate 's Court, Bolzano, Vipiteno Division] of
the Court Registry on 8 October 1996 , for a preliminary                  17 August 1996 , which was received at the Court Registry
ruling in the case of 1 . CO.NA.TA. — Consorzio Nazionale                on 30 September 1 996 , for a preliminary ruling in the case of
Tabacchi Soc . Coop a r.l . and 2 . Agrindustria Sri against             Dilexport Sri . v. Amministrazione delle Finanze dello Stato
AIMA — Aziende di Stato per gli Interventi sul Mercato                   on the following questions :
Agricolo [State Intervention Agency] on the question of the
validity of Article 5 of Regulation ( EEC ) No 3477/93 ( ! ) of           1 . Must Community law be interpreted as precluding the
17 December 1993 in connection with the principle of the                        adoption by a Member State of a provision such as
non-retroactivity of Community legislation since it cannot                      Article 29 of Italian Law No 428 of 29 December 1990
be justified either by the previous regulations or by an                        which makes the repayment of charges levied in breach
overriding public interest that warrants the sacrifice of                       of Community law subject to time-limits for
rights acquired on the basis of previous legislation, and                       prescription or lapse and to conditions as to proof which
entails an unforeseeable modification to the detriment of                       are different from and more restrictive than those laid
subjective rights, thereby undermining the legitimate                           down in the general rules of civil law ? In particular, with
expectations of the addressees of' the measure in                               regard to the principle that the procedural conditions for
question .                                                                      exercising the right to reimbursement established by
                                                                                national law 'may not be less favourable than those
(!) OJ No L 317, 18 . 12 . 1993 , p . 30 .                                      relating to similar actions of a domestic nature', what is
                                                                                to be understood by the expression ' similar actions of a
                                                                                domestic nature '?
Reference for a preliminary ruling by the Tribunal des                   2 . Do the fundamental principles of the Community order
Affaires de Sécurité Sociale des Bouches du Rhône by                            preclude the introduction by a Member State — in a
judgment of that Tribunal of 1 March 1996 in the case of J.                     limited manner and with reference only to a specific
Farias against Caisse Régionale d'Assurance Maladie du                          sphere consisting of a homogenous category of fiscal
                                   Sud-Est                                      levies made up in particular of charges linked to the
                                                                                Community order — of special derogating provisions to
                            ( Case C-339/96 )                                   restrict and limit the right to recovery of sums unduly
                              ( 96/C 354/43 )                                   paid, thus derogating from the general conditions for
                                                                                recovery of sums unduly paid laid down in Article 2033
Reference has been made to the Court of Justice of the                          of the Civil Code ? In particular, may the principle of
European Communities by judgment of the Tribunal des                            non-discrimination be understood in a restrictive sense,
Affaires de Securite Sociale des Bouches du Rhone [Social                       and may it thus be considered that a provision of a