CELEX: C1996/133/24
Language: en
Date: 1996-05-04 00:00:00
Title: Reference for a preliminary ruling from the Landesarbeitsgericht Hamburg by order of that court of 20 December 1995 in the case of Lilli Schröder v. Deutsche Bundespost Telekom (Case C-50/96)

No C 133/ 12           EN                Official Journal of the European Communities                                     4 . 5 . 96
 but leaves to the national authority the choice of form and              concerning Article 119 of the Treaty establishing the
 methods .                                                                European Community ( the 'Barber Protocol ') prevail
                                                                          over German constitutional law ( Article 3 ( 1 ) of the
Under Article 1 92 of the same Treaty, the Member States are              Grundgesetz ( Basic Law)), which specifically precludes a
to take all appropriate measures, whether general or                      prohibition of retroactivity in cases such as that
particular, to ensure fulfilment of the obligations arising out           described in Question 1 ?
of the Treaty or resulting from action taken by the
 institutions of the Community . Furthermore, under the first        4 . Does the retroactivity permitted by German
paragraph of Article 33 of the Treaty, each Member State is              constitutional law pursuant to Article 3 ( 1 ) of the
to lay down the appropriate provisions , whether by                       Grundgesetz constitute , in a case such as that described
legislation, regulation or administrative action, to ensure              in Question 1 , an impermissible circumvention of the
compliance with the basic standards which have been                      prohibition of retroactivity contained in the Protocol
established and to take the necessary measures with regard               concerning Article 119 of the EC Treaty, where, by
to teaching, education and vocational training. In the                   contrast with Community law, the national law
present case , since the Directive was adopted on the basis of           applicable in comparable circumstances, which is
Article 31 of the Treaty, the principles which it lays down              also aimed at establishing equality of treatment in
are to be deemed to be basic standards within the meaning of             occupational pension schemes, operates retroactively in
Article 33 .                                                             favour of employees, in particular women who are the
                                                                         subject of indirect discrimination ?
The Commission claims that Articles 3 , 4 and 5 of the
Directive have been inadequately transposed, since various           5 . If Question 4 is to be answered in the affirmative :
draft Royal Decrees have not yet been adopted . The period               does the application of paragraph 2 ( 1 ) of the
prescribed in Article 399 of the Act of Accession of the                 Beschàftigungsfôrderungsgesetz        ( Law     for      the
Kingdom of Spain expired on 1 April 1986 .                               Promotion of Employment ) of 26 April 1985 , which
                                                                         purports to allow retroactivity up to 26 April 1985 ,
(') OJ No L 265 , 5 . 10 . 1984 , p . 1 .                                constitute an impermissible circumvention of the
                                                                         prohibition of retroactivity contained in the Protocol
                                                                         concerning Article 119 of the EC Treaty ( the 'Barber
                                                                         Protocol')?
Reference for a preliminary ruling from the                         6 . Does the retroactivity permitted pursuant to
Landesarbeitsgericht Hamburg by order of that court of                   Article 3 ( 1 ) of the Grundgesetz in cases such as
20 December 1995 in the case of Lilli Schroder v. Deutsche               that described in Question 1 constitute a breach
                       Bundespost Telekom                                of Community law from the standpoint of
                         ( Case C-50/96 )
                                                                         disproportionate discrimination against nationals such
                                                                         as the German undertakings affected , or in the light of
                            96/C 133/24 )                                an interpretation of national law that renders it
                                                                         consistent with the Community rules or a principle of
Reference has been made to the Court of Justice of                       Community law, and does Community law prevail in
the European Communities by order of the Landes­                         that respect over national law ?
arbeitsgericht Hamburg ( Regional Labour Court,
Hamburg) of 20 December 1996 , which was received at the
Court Registry on 21 February 1996, for a preliminary
ruling in the case of Lilli Schroder v. Deutsche Bundespost
Telekom on the following questions :
                                                                    Reference for a preliminary ruling from the Tribunal de
1 . Where part-time employees working less than 18 hours            Première Instance de Namur by interim order of the
     per week are excluded by gender-neutral wording from           President of that court of 16 February 1996 in the case of
     eligibility for a supplementary pension operated within        Christelle Deliège v. Asbl Ligue Francophone de Judo et
     the framework of an occupational pension scheme, and                Disciplines Associées and Asbl Ligue Belge de Judo
     approximately 95 % of the employees affected by that                                   ( Case C-51/96 )
     exclusion are women, does that constitute indirect
     discrimination against women within the meaning of the                                   ( 96/C 133/25 )
     case-law of the Court of Justice on Article 119 of the
     EEC Treaty ?                                                   Reference has been made to the Court of Justice of the
                                                                    European Communities by an interim order of the President
2 . If Question 1 is to be answered in the affirmative : do         of the Tribunal de Première Instance de Namur ( Court of
     the Protocol concerning Article 119 of the Treaty              First Instance, Namur) of 16 February 1996, which was
     establishing the European Community ( the ' Barber             received at the Court Registry on 21 February 1996 , for a
     Protocol') and the prohibition of retroactivity contained      preliminary ruling in the case of Christelle Deliège v. Asbl
     therein also cover cases of indirect discrimination            Ligue Francophone de Judo et Disciplines Associées and
     against women in circumstances such as those described         Asbl Ligue Belge de Judo on the following question:
     in Question 1 ?
                                                                    Whether or not rules which require a professional or
3 . If Question 2 is to be answered in the affirmative : does       semi-professional sportsman or a person aspiring to such
     the prohibition of retroactivity contained in the Protocol     status to have been authorized or selected by his national