CELEX: C2002/109/37
Language: en
Date: 2002-05-04 00:00:00
Title: Case C-27/02: Reference for a preliminary ruling by the Oberlandesgericht Innsbruck by order of that Court of 14 January 2002 in the case of Petra Engler against Janus Versand Gesellschaft m.b.H.

4.5.2002               EN                     Official Journal of the European Communities                                        C 109/23
as precluding a social plan under which all female employees             3.b)     Is this directive to be interpreted as precluding a social
aged 50 and over at the time of their dismissal and all male             plan under which all female employees aged 50 and over at
employees aged 55 and over at the time of their dismissal are            the time of their dismissal and all male employees aged 55 and
entitled, irrespective of the period of employment, that is to           over at the time of their dismissal are entitled, irrespective of
say with no account being had to any ‘qualification periods’             the period of employment, that is to say with no account
and solely on the basis of age — or to the fact that the risk of         being had to any ‘qualification periods’ and solely on the basis
long-term unemployment for men and for women generally                   of age — or to the fact that the risk of long-term unemploy-
differs according to their age &mdash, to a ‘bridging allowance’         ment for men and for women generally differs according to
amounting to 75 % of their final gross monthly salary for five           their age —, to a ‘bridging allowance’ amounting to 75 % of
years, but at most until they become entitled to a statutory             their final gross monthly salary for five years, but at most until
pension?                                                                 they become entitled to a statutory pension?
1.b)     In particular, is the concept of pay in Article 141 EC
and Article 1 of the directive to be construed as including, in
the case of benefits which are related not to work performed
but solely to membership of a workforce and the social
obligation on the employer, allowance for the risk of long-
term unemployment so that pay must regarded as equal where
— overall — it covers the same degree of risk even though
this risk normally occurs in different age groups in the case of         Reference for a preliminary ruling by the Oberlandesge-
men and women?                                                           richt Innsbruck by order of that Court of 14 January
                                                                         2002 in the case of Petra Engler against Janus Versand
                                                                                                 Gesellschaft m.b.H.
1.c)     Or can, if the concept of ‘pay’ in these provisions after
all covers only the cash benefit as such, the varying risk thus                                     (Case C-27/02)
construed justify different treatment of men and women?
                                                                                                   (2002/C 109/37)
2.     Is the concept of ‘occupational social security schemes’
within the meaning of Article 2(1) of Council Directive
86/378/EEC of 24 July 1986 on the implementation of
the principle of equal treatment for men and women in                    Reference has been made to the Court of Justice of the
occupational social security schemes (OJ 1986 L 225, p. 40),             European Communities by order of the Oberlandesgericht
as amended by Council Directive 96/97/EC of 20 December                  (Higher Regional Court) Innsbruck of 14 January 2002,
1996 (OJ 1996 L 46, p. 20), to be construed as including                 received at the Court Registry on 31 January 2002, for a
bridging allowances in the above sense?                                  preliminary ruling in the case of Petra Engler against Janus
                                                                         Versand Gesellschaft m.b.H. on the following questions:
                                                                         For the purposes of the Brussels Convention on Jurisdiction
Is the concept of the risk of ‘old age, including early retirement’      and the Enforcement of Judgments in Civil and Commercial
in Article 4 of the directive to be construed as including such          Matters of 27 September 1968 (‘the Convention’), does the
‘bridging allowances’?                                                   provision in Paragraph 5j of the Austrian Konsumentenschutz-
                                                                         gesetz (Consumer Protection Law) (‘KSchG’), BGBl. 1979/140,
                                                                         in the version of Paragraph 1(2), of the Austrian Fernabsatz-
                                                                         Gesetz (Distance Selling Law), BGBl. I 1999/185, which entitles
Does the concept of ‘scheme’ in Article 6(1)(c) of the directive         consumers to claim from undertakings in the courts prizes
cover only the question of fulfilment of the requirements for            ostensibly won by them where the undertakings send (or have
entitlement to the bridging allowance or also membership of              sent) them prize notifications or other similar communications
the workforce as a whole?                                                worded so as to give the impression that they have won a
                                                                         particular prize, also constitute:
3.a)     Is Council Directive 76/207/EEC of 9 February 1976              1.    a contractual claim under Article 13(3); or
on the implementation of the principle of equal treatment for
men and women as regards access to employment, vocational                2.    a contractual claim under Article 5(1); or
training and promotion, and working conditions (OJ 1976
L 39, p. 40) to be interpreted to the effect that the ‘bridging
allowance’ described above constitutes a condition governing             3.    a claim in respect of a tort, delict or quasi-delict under
dismissal within the meaning of Article 5 of this directive?                   Article 5(3)
 ---pagebreak--- C 109/24                EN                   Official Journal of the European Communities                                        4.5.2002
where on the basis of the documents sent to him a sensible              3.    Are carers within the meaning of Paragraph 19 of
consumer could have thought that all he had to do to claim                    Volume XI of the SGB workers within the meaning of
the amount held for him was to return an enclosed payment                     Article 39 EC? If so, does that preclude denying them the
notice, so that the payment of the prize did not depend on an                 right to have ‘pension insurance contributions’ paid on
order for and delivery of goods from the undertaking promis-                  their behalf on the basis that they do not have their
ing the prize, but where a catalogue and a voucher for a trial                residence or habitual place of stay in the relevant country?
offer without obligation are sent to the consumer with the
prize notification?
If the first question is answered in the affirmative, there is no       (1) OJ, English Special Edition 1971 (II), p. 416.
need to answer the other two questions.
Reference for a preliminary ruling by the Socialgericht
Aachen by order of 18 January 2002 in the case of Maria
Barth against Landesversicherungsanstalt Rheinprovinz,
additional parties (1) PAX Familienfürsorge Krankenver-                 Reference for a preliminary ruling by the Bundesverwal-
sicherung and (2) Landesamt für Besoldung und Versor-                   tungsgericht by order of that Court of 8 November 2001
                   gung Nordrhein-Westfalen                             in the case of Landeszahnärztekammer Hessen against
                                                                                                 Dr Markus Vogel
                           (Case C-31/02)
                                                                                                   (Case C-35/02)
                          (2002/C 109/38)
                                                                                                  (2002/C 109/39)
Reference has been made to the Court of Justice of the
European Communities by order of the Socialgericht Aachen
(Social Court, Aachen) of 18 January 2002, received at the
Court Registry on 4 February 2002, for a preliminary ruling in
the case of Maria Barth against Landesversicherungsanstalt              Reference has been made to the Court of Justice of the
Rheinprovinz, additonal parties (1) PAX Familienfürsorge                European Communities by order of the Bundesverwaltungsger-
Krankenversicherung and (2) Landesamt für Besoldung und                 icht (Federal Administrative Court) of 8 November 2001,
Versorgung Nordrhein-Westfalen on the following questions:              received at the Court Registry on 12 February 2002, for a
                                                                        preliminary ruling in the case of Landeszahnärztekammer
1.    Are the provisions of Regulation EEC No 1408/71 (1) of            Hessen against Dr Markus Vogel on the following question:
      the Council of 14 June 1971 on the application of social
      security schemes to employed persons and their families
      moving within the Community also applicable to the                Is it compatible with Article 1 of Council Directive
      German care insurance regime if cover for the risk                78/687/EEC (1) of 25 July 1978 concerning the coordination
      of becoming reliant on care under Paragraph 23, in                of provisions laid down by law, regulation or administrative
      conjunction with Paragraph 110, of Volume XI of the               action in respect of the activities of dental practitioners (OJ
      Sozialgesetzbuch (German Code of Social Law, herein-              1978 L 233, p. 10) for national legislation to permit doctors
      after ‘the SGB’), which relates to Social Care Insurance, is      in general to practise dentistry on a permanent basis without
      based in whole or in part on a private care insurance             having the dental training required by the directive and
      policy?                                                           certified by an appropriate diploma?
2.    Do the contributions payable to the statutory pension
                                                                        Does the answer to this question turn on whether the activity
      insurance scheme by care insurance institutions on behalf
                                                                        is pursued under the title ‘dental practitioner’?
      of carers not acting in the course of employment pursuant
      to Paragraph 44 of Volume XI of the SGB, in conjunction
      with Paragraphs 3(1)(1)(a) and 166(2) of Volume VI of
      the SGB, which relates to Statutory Pension Insurance,
      constitute ‘sickness benefits’ within the meaning of              (1) OJ L 233 of 24.8.1978, p. 10.
      Article 4(1)(a) of Regulation No EEC No 1408/71? If so,
      may such benefits be payable on behalf of carers who
      provide care in the country of the competent institution
      but live in a different Member State?