CELEX: C2004/047/20
Language: en
Date: 2004-02-21 00:00:00
Title: Case C-229/03: Reference for a preliminary ruling by the Landesgericht für Zivilrechtsachen Wien by order of that court of 7 April 2003 in the case of Monika Herbstrith against Republic of Austria

C 47/12                 EN                       Official Journal of the European Union                                             21.2.2004
8.    Are the provisions of the EC Treaty founding state liability             does not provide in the event of irregular legislative
      under the criteria laid down by the Court of Justice where               measures (Paragraph 1 AHG — ‘in enforcement of the
      rights directly conferred on EC citizens by the EC Treaty                Laws ...’), also to be classified as a damages claim?
      are grossly and culpably infringed to be interpreted as
      meaning that relevant restrictions on state liability under
      the national legal order, or also on the basis of decisions        (1) Brasserie du Pêcheur SA v Bundesrepublik Deutschland and The
      of national courts (in particular to the effect that claims            Queen v Secretary of State for Transport, ex parte: Factortame Ltd
      for compensation in regard to foreign policy measures                  and Others [1996] ECR I-1029.
      are precluded), are in any event unlawful?                         (2) Courage Ltd v Bernard Crehan [2001] ECR I-6297.
                                                                         Reference for a preliminary ruling by the Landesgericht
Reference for a preliminary ruling by the Landesgericht                  für Zivilrechtsachen Wien by order of that court of
für Zivilrechtssachen Wien by order of that court of                     7 April 2003 in the case of Monika Herbstrith against
15 April 2003 in the case of Helmut Fröschl against                                              Republic of Austria
                        Republic of Austria
                                                                                                   (Case C-229/03)
                         (Case C-184/03)
                                                                                                    (2004/C 47/20)
                          (2004/C 47/19)
                                                                         Reference has been made to the Court of Justice of the
                                                                         European Communities by order of the Landesgericht für
Reference has been made to the Court of Justice of the                   Zivilrechtsachen Wien (Regional civil court, Vienna) of 7 April
European Communities by order of the Landesgericht für                   2003, received at the Court Registry on 26 May 2003, for a
Zivilrechtssachen Wien (Regional Court for civil cases, Vienna)          preliminary ruling in the case of Monika Herbstrith against
of 15 April 2003, received at the Court Registry on 5 May                Republic of Austria on the following questions:
2003, for a preliminary ruling in the case of Helmut Fröschl
against Republic of Austria on the following questions:                  1.    Is EU law concerning equal treatment of men and women
                                                                               at work, in particular Directive 76/207/EEC (1), directly
                                                                               applicable, so that, as to amount, a claim for compen-
1.    In 1998 was it contrary to then directly applicable                      sation under Paragraph 15(1) of the B-GBG may be
      Community law, in particular Articles 12, 43 and 49 of                   obtained to the full extent of the damage occasioned,
      the EC Treaty, to interpret Paragraph 373c(3)(a), (b) and                irrespective of any limitation under Austrian domestic
      (c) of the Gewerbeordnung 1994 (Trade Code, GewO                         legislation or, in the absence of any such direct applica-
      1994), BGBl No 194, in the version of BGBl No I 63/                      bility of EU law, is there a claim founded on state liability
      1997, and the Regulation of the Federal Minister for                     for compensation to the full extent of the damage?
      Economic Affairs on the grant of exemption from the
      prescribed proof of competence for nationals of Member
      States of the Agreement on the European Economic Area,             2.    In the assessment of claims in respect of the foregoing is
      BGBl No 775/1993, in such a way that a national                          the rule concerning the burden of proof in Article 4 of
      photographer is prohibited from exercising his trade                     Council Directive 97/80/EC (2) directly applicable and, if
      because the qualifications set out there for proof of                    so,
      competence have been acquired by him in Austria and
      not in another State of the EEA?                                         (a)   does that apply on the basis that an expert opinion
                                                                                     within the meaning of Paragraph 22(1) of the B-
      If question 1 is answered in the affirmative:                                  GBG is sufficient for the purposes of attestation if it
                                                                                     appears conclusively and unreservedly that there is
      According to the settled case-law of the Court of Justice                      discrimination and it cannot be ruled out that such
      (e.g. Joined Cases C-46/93 and C-48/93 (1); Case C-453/                        discrimination arose for gender-related reasons, with
      99 (2)), is the payment of the costs which the plaintiff has                   the result that in the case giving rise to this reference
      to incur in domestic proceedings, including his recourse                       the opinion of the federal committee on equal
      to public law courts, in order to have a law contrary to                       treatment of 9 November 1998 satisfies this require-
      Community law set aside and for which national law                             ment
 ---pagebreak--- 21.2.2004              EN                        Official Journal of the European Union                                          C 47/13
     (b) does that apply notwithstanding an opinion as                   4.   Does Community law also require the payment of
           mentioned above on the basis that where the                        damages for non-material loss?
           plaintiff proves or even where the plaintiff substan-
           tiates that in the filling of the post the applicant          5.   As a matter of Community law, is the national court
           preferred to the plaintiff was less well-qualified than            required of its own motion to order the payment of
           the plaintiff the rule of evidence under this directive            punitive damages or damages for non-material loss?
           comes into effect
     (c)   and on the basis that proof to the contrary may only          6.   Is the limitation period of one year for bringing an action
           be regarded as conclusive if it leads to the factual               for damages for breach of Articles 81 and 82 EC under
           finding that the candidate appointed was better                    Italian law too short and therefore in conflict with
           suited or that in actual fact a non-gender-related                 Community law?
           reason was the decisive factor in the appointment of
           a less well-suited candidate?                                 7.   As a matter of Community law, for the purposes of the
                                                                              limitation period for bringing an action for damages,
                                                                              does time begin to run from the day on which the
(1) OJ 1976 L 39, p. 40.                                                      infringement of Articles 81 and 82 EC was committed or
(2) OJ 1997 L 14, p. 6.                                                       the day on which that infringement came to an end?
                                                                         8.   Does Community law require national courts to disapply
                                                                              national rules in conflict with Community law or rather
                                                                              to interpret them so as to comply with Community law?
Reference for a preliminary ruling by the Ufficio del
guidice di pace de Bitonto by order of that Court of
6 October 2003 in the case of Antonio Cannito against
                      Fondiaria-Sai Ass.ni.
                         (Case C-438/03)
                                                                         Reference for a preliminary ruling by the Ufficio del
                                                                         guidice di pace de Bitonto by order of that Court of
                          (2004/C 47/21)                                 6 October 2003 in the case of Antonio Cannito against
                                                                                              Fondiaria-Sai Ass.ni.
Reference has been made to the Court of Justice of the                                           (Case C-439/03)
European Communities by order of the Ufficio del guidice di
pace de Bitonto of 6 October 2003, received at the Court
Registry on 16 October 2003, for a preliminary ruling in the                                      (2004/C 47/22)
case of Antonio Cannito against Fondiaria-Sai Ass.ni. on the
following questions:
1.   Do the facts as found in Judgment No 2199 of the
                                                                         Reference has been made to the Court of Justice of the
     Consiglio di Stato (Council of State) of 23 April 2002 and
                                                                         European Communities by order of the Ufficio del guidice di
     in Judgment No 6139 of the Tribunale Amministrativo
                                                                         pace de Bitonto of 6 October 2003, received at the Court
     Regionale (Regional Administrative Court) Lazio (Rome)
                                                                         Registry on 16 October 2003, for a preliminary ruling in the
     of 5 July 2001, which are deemed to be set out here in
                                                                         case of Antonio Cannito against Fondiaria-Sai Ass.ni. on the
     full, constitute infringements of Community law, in
                                                                         following questions:
     particular of Articles 81 and 82 EC?
2.   Does an infringement of Articles 81 and 82 EC imply an              1.   Do the facts as found in Judgment No 2199 of the
     obligation on the part of the person committing it to                    Consiglio di Stato (Council of State) of 23 April 2002 and
     compensate end users, and all those who demonstrate                      in Judgment No 6139 of the Tribunale Amministrativo
     that they have suffered any injury, for damage suffered?                 Regionale (Regional Administrative Court) Lazio (Rome)
                                                                              of 5 July 2001, which are deemed to be set out here in
3.   In assessing the amount of damages, in addition to the                   full, constitute infringements of Community law, in
     restitution of sums charged in breach of Community                       particular of Articles 81 and 82 EC?
     rules, is the national court required (again as a matter of
     Community law) to award the injured party a sum by way              2.   Does an infringement of Articles 81 and 82 EC imply an
     of punitive damages against those persons responsible                    obligation on the part of the person committing it to
     for the prohibited agreement or abuse of a dominant                      compensate end users, and all those who demonstrate
     position?                                                                that they have suffered any injury, for damage suffered?