CELEX: C1998/278/33
Language: en
Date: 1998-09-05 00:00:00
Title: Appeal brought on 6 July 1998 by Dorsch Consult Ingenieurgesellschaft mbH against the judgment delivered on 28 April 1998 by the Second Chamber of the Court of First Instance of the European Communities in Case T-184/95 Dorsch Consult Ingenieurgesellschaft mbH and Council of the European Union and Commission of the European Communities (Case C-237/98 P)

5.9.98               EN                 Official Journal of the European Communities                                C 278/19
Reference for a preliminary ruling from the Arbetsdomstol          5. In answering question 4, is significance to be attached
by order of that court of 2 July 1998 in the case brought              to the fact that the midwives, but not the clinical
by Jämställdhetsombudsmannen Lena Svenaeus against                     technician, perform shift work which, under the terms
                   Örebro Läns Landsting                               of the collective agreement, affords entitlement to
                      (Case C-236/98)                                  reduced working hours?
                       (98/C 278/32)                               (1) OJ L 45, 19.2.1975, p. 19.
Reference has been made to the Court of Justice of the
European Communities by an order of the Arbetsdomstol
of 2 July 1998, which was received at the Court Registry
on 6 July 1998, for a preliminary ruling in the case
brought by Jämställdhetsombudsmannen Lena Svenaeus                 Appeal brought on 6 July 1998 by Dorsch Consult
against Örebro Läns Landsting on the following questions:          Ingenieurgesellschaft mbH against the judgment delivered
                                                                   on 28 April 1998 by the Second Chamber of the Court of
                                                                   First Instance of the European Communities in Case
1. Under Article 119 of the Treaty of Rome and Council             T-184/95 Dorsch Consult Ingenieurgesellschaft mbH and
    Directive 75/117/EEC (1) on the approximation of the           Council of the European Union and Commission of the
    laws of the Member States relating to the application                             European Communities
    of the principle of equal pay for men and women,                                     (Case C-237/98 P)
    must compensation for unsocial working hours be
    included in the basis for a pay comparison in relation                                  (98/C 278/33)
    to a pay discrimination claim? What difference does it
    make that the compensation for unsocial working
    hours varies from month to month depending on the              An appeal against the judgment delivered on 28 April
    working schedule?                                              1998 by the Second Chamber of the Court of First
                                                                   Instance in Case T-184/95 between Dorsch Consult
                                                                   Ingenieurgesellschaft mbH and Council of the European
2. In answering question 1 should significance be                  Union and Commission of the European Communities was
    attached to the fact that as part of their tasks the           brought before the Court of Justice of the European
    midwives must regularly work hours which entitle               Communities on 6 July 1998 by Dorsch Consult
    them to compensation for working during unsocial               Ingenieurgesellschaft mbH, represented by Professor Dr
    working hours, whereas the clinical technician does            Karl M. Meessen, with an address for service in
    not regularly perform work during times which afford           Luxembourg at the Chambers of Patrick Kinsch, 100
    entitlement to such compensation?                              Boulevard de la PeÂtrusse, L-2320 Luxembourg.
3. In determining the question whether compensation                The appellant claims that the Court should:
    for unsocial working hours is to be included in
    the basis for a pay comparison in relation to a pay
    discrimination claim, must significance be attached to         Ð set aside the judgment of the Court of First Instance of
    the fact that, under national law, such compensation is            22 April 1998 in Case T-184/95 (1),
    included in basic pay for the purpose of determining
    pensions, sickness pay, damages and other pay related          Ð allow the application,
    compensation?
                                                                   Ð in the alternative, refer the case back to the Court of
4. Must a reduction in working time, representing the                  First Instance, and
    difference in standard working time for daytime work
    and work under a continuous three-shift regime, be
    taken into account when a pay comparison is made in            Ð order the defendants and respondents to pay the costs
    relation to a pay discrimination claim, in accordance              of the proceedings.
    with Article 119 of the Treaty of Rome and Council
    Directive 75/117/EEC on the approximation of the
    laws of the Member States relating to the application          Pleas in law and main arguments adduced in support:
    of the principle of equal pay for men and women? If
    the answer is in the affirmative: what significance does       (As to the existence of actual and certain damage)
    it have that under the collective agreement the lower
    standard working time applying under a continuous
    three-shift regime constitutes full-time working? If           Ð The Court's view that the facts found by it should not
    reduced working hours are to be given a particular                 be characterised as actual and certain damage' is
    value, is that value to be regarded as being comprised             wrong in law. If a correct characterisation were made,
    in the fixed monthly pay or as constituting special                the existence of such damage would follow from facts
    compensation which is to be included in the pay                    found in the judgment or in the minutes of the oral
    comparison?                                                        procedure,
 ---pagebreak--- C 278/20              EN                Official Journal of the European Communities                                      5.9.98
Ð the above view of the Court is based exclusively on                  legislature failed to exercise its discretion when setting
    grounds that are either irrelevant, represent incorrect            the amount of the compensation.
    views of the law or distort the facts emerging from the
    judgment and the documents before the Court,
                                                                   (1) OJ C 184, 13.6.1998, p. 9.
    contrary to law,
Ð (alternatively) the Court did not attempt to clarify the
    uncertainty which itself found regarding the actual
    situation, since it did not appraise, discuss or, to an
    extent, even mention the relevant evidence submitted
    by the plaintiff.                                              Action brought on 7 July 1998 by the Commission of the
                                                                       European Communities against the French Republic
                                                                                           (Case C-239/98)
(As to the existence of a direct and foreseeable causal link)
                                                                                            (98/C 278/34)
Ð The Court's view that the facts found by it should not
    be characterised as a direct [and foreseeable] causal         An action against the French Republic was brought before
    link between the alleged damage and the adoption of            the Court of Justice of the European Communities on 7 July
    Regulation (EEC) No 2340/90' constitutes an error of           1998 by the Commission of the European Communities,
    law. If a correct characterisation were made, the              represented by Christina Tufvesson, Legal Adviser, and
    existence of such a causal link would follow from the          Bernard Mongin, of its Legal Service, acting as Agents,
    facts found by the Court,                                      with an address for service in Luxembourg at the office of
                                                                   Carlos Gómez de la Cruz, Wagner Centre, Kirchberg.
Ð the grounds given by the Court for the above view are
    either irrelevant, based on an incorrect view of the law       The Commission of the European Communities claims
    or should not be applied because they are based on a           that the Court should:
    finding of facts which constitutes an error of law,
                                                                   Ð declare that, by failing to adopt (or implement) and
Ð (alternatively) the Court did not attempt to clarify the             communicate all of the laws, regulations and
    uncertainty which itself found regarding the actual                administrative measures necessary in order to comply
    situation, since it did not appraise, discuss or, to an            fully with Council Directive 92/49/EEC of 18 June
    extent, even mention the relevant evidence submitted               1992 on the coordination of laws, regulations and
    by the plaintiff.                                                  administrative provisions relating to direct insurance
                                                                       other than life assurance and amending Directives 73/
                                                                       239/EEC and 88/357/EEC (third non-life insurance
                                                                       Directive) (1) and with Council Directive 92/96/EEC
(As to the existence of unusual and special damage)                    of 10 November 1992 on the coordination of laws,
                                                                       regulations and administrative provisions relating
                                                                       to direct life assurance and amending Directives 79/
Ð If a correct characterisation were made, the existence               267/EEC and 90/619/EEC (third life assurance
    of unusual and special damage would follow from the                Directive) (2), and, in particular, by omitting to
    Court's findings of fact.                                          transpose those directives as regards mutuelles reÂgies
                                                                       par le code de la mutualiteÂ', the French Republic has
                                                                       failed to fulfil its obligations under the EC Treaty and
(As to the alternative claim for compensation for damage               under those Directives,
resulting from an unlawful act)
                                                                   Ð order the French Republic to pay the costs.
Ð The Court's view that the claim made in the
    application cannot be based on the applicant's
    alternative ground regarding the amount of the                 Pleas in law and main arguments adduced in support:
    damage, because a claim for compensation for a
    lawful act does not exist on the merits, is based on an
    error of law. The plaintiff, which did not make an             The transposition by France of Directives 92/49/EEC
    alternative plea in law but which, as is clear from the        and 92/96/EEC is incomplete, since it does not extend
    documents before the Court, merely submitted an                to mutuelles reÂgies par le code de la mutualiteÂ' in
    alternative ground for its plea, has, contrary to the          accordance with Article 8 of Directives 73/239/EEC (3) and
    Court's view, on the merits at least a claim for               79/267/EEC (4). Mere communication of a draft law which
    damages for a lawful act and can therefore claim               has not yet been adopted and is still being discussed
    full damages in this case because the Community                with the economic operators concerned cannot constitute