CELEX: C1998/278/24
Language: en
Date: 1998-09-05 00:00:00
Title: Reference for a preliminary ruling by the Østre Landsret by a decision of that court of 4 June 1998 in the case of Birgitte Jørgensen v. Foreningen af Speciallæger and Sygesikringens Forhandlingsudvalg (Case C-226/98)

5.9.98                 EN                   Official Journal of the European Communities                                       C 278/15
     these provisions, which list exhaustively the types of                 of occupational conditions to be undertaken in an
     sickness insurance allowed, do not cover all potential                 equal treatment case should be made by way of an
     circumstances and are therefore too restrictive,                       overall assessment of all the factors en bloc or by way
                                                                            of a point-for-point comparison as in equal pay cases.
Ð Incorrect transposition of the three directives into
     national law as regards verification of continued                      It can be assumed in answering the question that
     sickness insurance cover                                               the transformationsmodel' (reorganisation scheme
                                                                            for medical specialists' practices, hereinafter the
     Whilst, under Article 3 of Directives 90/364/EEC and                   reorganisation scheme')/agreement assessed en bloc
     90/365/EEC and under Article 4 of Directive 93/96/                     and as a whole is neutral as regards sex in both its
     EEC, a right of residence can be revoked when the                      effect and purpose.
     person concerned no longer meets the conditions laid
     down, in particular that regarding sickness insurance
     cover, that provision cannot be construed so as                        It can further be assumed that the reorganisation
     to allow active and constant monitoring by the                         scheme/agreement contains provisions which, viewed
     authorities responsible for issuing residence permits                  in isolation, result in sex bias, inasmuch as it is noted
     of the position of the beneficiaries of Directives 90/                 that that biased effect, with regard to some provisions,
     364/EEC, 90/365/EEC and 93/96/EEC. Any other                           is predominantly experienced by female medical
     approach would be contrary, not only to those                          specialists and, with regard to other provisions, is
     Directives, but, more fundamentally, to the principles                 predominantly       experienced       by     male    medical
     embodied in Article 8a of the EC Treaty.                               specialists.
(1) Council Directive 90/364/EEC on the right of residence (OJ         2. If the answer to question 1 is in the affirmative, a
    L 180, 13.7.1990, p. 26).                                               ruling is requested as to how far considerations
(2) Council Directive 90/365/EEC on the right of residence for
                                                                            relating to budgetary safeguards, savings and planning
    employees and self-employed persons who have ceased their
    occupational activity (OJ L 180, 13.7.1990, p. 28).                     as regards medical practices may be treated as
(3) Council Directive 93/96/EEC on the right of residence for               objective and valid considerations such as to make it
    students (OJ L 317, 18.12.1993, p. 59).                                 acceptable that proportionately more women than
                                                                            men are affected by the provision in question.
                                                                       3. In view of the applicant's age (she was born in 1939),
                                                                            can the consideration for goodwill which the applicant
                                                                            should obtain when she gives up her practice on
Reference for a preliminary ruling by the éstre Landsret                    reaching retirement age be likened to an employee's
by a decision of that court of 4 June 1998 in the case of                   pension savings?
Birgitte Jùrgensen v. Foreningen af Speciallñger and Syge-
                 sikringens Forhandlingsudvalg
                         (Case C-226/98)                               4. If the Court of Justice replies to question 3 in
                                                                            the affirmative, clarification is sought as to the
                           (98/C 278/24)                                    repercussions for the answer to question 1 if one
                                                                            aspect of the disadvantage to which the provision in
                                                                            question gives rise is lower consideration for goodwill
Reference has been made to the Court of Justice of the                      when a practice is relinquished, and thereby worse
European Communities by order of the éstre Landsret                         pension insurance, if account is taken of the fact that
(Eastern Regional Court) of 4 June 1998, which was                          in Case C-297/93 Grau-Hupka [1994] ECR 5535,
received at the Court Registry on 24 June 1998, for a                       paragraph 27, it was held that the Member States are
preliminary ruling in the case of Birgitte Jùrgensen v. Fore-               not obliged to grant advantages in respect of old-age
ningen af Speciallñger and Sygesikringens Forhandlings-                     pension schemes to persons who have brought-up
udvalg on the following questions:                                          children or to provide benefit entitlements where
                                                                            employment has been interrupted in order to bring up
                                                                            children.
1. The Court of Justice is asked to clarify how
     an assessment as to whether there is indirect
     discrimination on grounds of sex should be                        (1) On the implementation of the principle of equal treatment for
     undertaken in a case concerning equal treatment under                 men and women as regards access to employment, vocational
     Council Directive 76/207/EEC (1) of 9 February 1976                   training and promotion, and working conditions (OJ L 39,
                                                                           14.2.1976, p. 40).
     and Council Directive 86/613/EEC (2) of 11 December
                                                                       (2) On the application of the principle of equal treatment between
     1986.                                                                 men and women engaged in an activity, including agriculture,
                                                                           in a self-employed capacity, and on the protection of self-
                                                                           employed women during pregnancy and motherhood (OJ
     In view of the fact that under the settled case-law of                L 359, 19.12.1986, p. 56).
     the Court of Justice in equal pay cases a comparison
     should be made on a point-for-point-basis,
     clarification is requested as to whether the comparison