CELEX: C1999/100/06
Language: en
Date: 1999-04-10 00:00:00
Title: Judgment of the Court of 9 February 1999 in Case C-167/97 (reference for a preliminary ruling from the House of Lords): Regina v. Secretary of State for Employment (Men and women - Equal pay - Equal treatment - Compensation for unfair dismissal - Definition of pay - Right of a worker not to be unfairly dismissed - Whether falling under Article 119 of the EC Treaty or Directive 76/207/EEC - Legal test for determining whether a national measure constitutes indirect discrimination for the purposes of Article 119 of the EC Treaty - Objective justification)

C 100/4               EN                 Official Journal of the European Communities                                 10.4.1999
              JUDGMENT OF THE COURT                                 3. Community law precludes a Member State from
                                                                        making repayment of customs duties and taxes
                       (Fifth Chamber)                                  contrary to Community law subject to a condition,
                                                                        such as the requirement that such duties or taxes have
                     of 9 February 1999
                                                                        not been passed on to third parties, which the plaintiff
in Case C-343/96 (reference for a preliminary ruling from               must show he has satisfied.
the Pretura Circondariale di Bolzano, Sezione Distaccata
di Vipiteno (Italy)): Dilexport Srl v. Amministrazione delle
                    Finanze dello Stato (1)
                                                                    4. Community law does not preclude the imposition, in
(Internal taxes contrary to Article 95 of the Treaty Ð                  the case of claims for repayment of customs duties or
Recovery of sums paid but not due Ð National rules of                   taxes contrary to Community law, of the non-
                          procedure)                                    retroactive requirement which, if not fulfilled, renders
                                                                        the claim inadmissible, that notice thereof is to be
                       (1999/C 100/05)                                  given ot the tax authority which received the tax
                                                                        return of the person concerned for the year in
                                                                        question.
               (Language of the case: Italian)
                                                                    (1) OJ C 354, 23.11.1996.
 (Provisional translation; the definitive translation will be
         published in the European Court Reports)
In Case C-343/96: Reference to the Court under
Article 177 of the EC Treaty by the Pretura Circondariale
di Bolzano, Sezione Distaccata di Vipiteno (Italy) for a
preliminary ruling in the proceedings pending before that                         JUDGMENT OF THE COURT
court between Dilexport Srl and Amministrazione delle
Finanze dello Stato on the interpretation of Community                                   of 9 February 1999
law relating to sums paid but not due Ð the Court (Fifth
                                                                    in Case C-167/97 (reference for a preliminary ruling from
Chamber), composed of: J.-P. Puissochet (Rapporteur,
                                                                    the House of Lords): Regina v. Secretary of State for
President of the Chamber), C. Gulmann, D. A. O.
                                                                                           Employment (1)
Edward, L. Sevón and M. Wathelet, Judges, D. Ruiz-
Jarabo Colomer, Advocate-General, D. Louterman-                     (Men and women Ð Equal pay Ð Equal treatment Ð
Hubeau, Principal Administrator, for the Registrar, has             Compensation for unfair dismissal Ð Definition of pay'
given a judgment on 9 February 1999, in which it has                Ð Right of a worker not to be unfairly dismissed Ð
ruled:                                                              Whether falling under Article 119 of the EC Treaty or
                                                                    Directive 76/207/EEC Ð Legal test for determining
                                                                    whether a national measure constitutes indirect
1. Community law does not preclude national provisions              discrimination for the purposes of Article 119 of the EC
    from making repayment of customs duties or taxes                              Treaty Ð Objective justification)
    contrary to Community law subject to less favourable
    time-limits and procedural conditions than those laid                                 (1999/C 100/06)
    down for actions between private individuals for
    recovery of sums paid but not due, provided that those
    conditions apply in the same way to actions for
    repayment which are based on Community law and to                              (Language of the case: English)
    those based on national law and do not make it
    impossible or excessively difficult to exercise the right
    to repayment.
                                                                    In case C-167/97: Reference to the Court under Article 177
                                                                    of the EC Treaty by the House of Lords (United Kingdom)
2. Community law does not preclude the adoption by a                for a preliminary ruling in the proceedings pending before
    Member State, following judgments of the Court                  that court, Regina v. Secretary of State for Employment,
    declaring duties or charges to be contrary to                   ex parte Nicole Seymour-Smith and Laura Perez, on the
    Community law, of provisions which render the                   interpretation of Article 119 of the EC Treaty and Council
    conditions for repayment applicable to those duties             Directive 76/207/EEC of 9 February 1976 on the
    and charges less favourable than those which would              implementation of the principle of equal treatment for
    otherwise have been applied, provided that the duties           men and women as regards access to employment,
    and charges in question are not specifically targeted by        vocational training and promotion, and working
    that amendment and the new provisions do not make               conditions (OJ L 39, 14.2.1976, p. 40) Ð the Court,
    it impossible or excessively difficult to exercise the          composed of: G. C. Rodríguez Iglesias, President, P. J. G.
    right to repayment.                                             Kapteyn, J.-P. Puissochet, G. Hirsch and P. Jann
 ---pagebreak--- 10.4.1999             EN                  Official Journal of the European Communities                                      C 100/5
(Presidents of Chambers), G. F. Mancini, (Rapporteur)                              JUDGMENT OF THE COURT
J. C. Moitinho de Almeida, C. Gulmann, J. L. Murray,
D. A. O. Edward, H. Ragnemalm, L. Sevón, M. Wathelet,                                       (First Chamber)
R. Schintgen and K. M. Ioannou, Judges, G. Cosmas,
Advocate-General; D. Louterman-Hubeau, Principal                                          of 9 February 1999
Administrator, for the Registrar, has given a judgment on            in Case C-280/97 (reference for a preliminary ruling from
9 February 1999, in which it has ruled:                              the Finanzgericht Düsseldorf): ROSE Elektrotechnik
                                                                          GmbH & Co. KG v. Oberfinanzdirektion Köln (1)
1. A judicial award of compensation for breach of the                (Combined nomenclature Ð Tariff headings Ð Junction
    right not to be unfairly dismissed constitutes pay                              box without cables or contacts)
    within the meaning of Article 119 of the EC Treaty.
                                                                                            (1999/C 100/07)
2. The conditions determining whether an employee is
    entitled, where he has been unfairly dismissed, to                              (Language of the case: German)
    obtain compensation fall within the scope of
    Article 119 of the Treaty. However, the conditions
    determining whether an employee is entitled, where he
    has been unfairly dismissed, to obtain reinstatement or
    re-engagement fall within the scope of Council                     (Provisional translation; the definitive translation will be
    Directive 76/207/EEC of 9 February 1976 on the                            published in the European Court Reports)
    implementation of the principle of equal treatment for
    men and women as regards access to employment,
    vocational training and promotion, and working
                                                                     In Case C-280/97: Reference to the Court under
    conditions.
                                                                     Article 177 of the EC Treaty by the Finanzgericht
                                                                     Düsseldorf (Germany) in the proceedings pending before
                                                                     that court between ROSE Elektrotechnik GmbH & Co.
3. It is for the National Court, taking into account all
                                                                     KG and Oberfinanzdirektion Köln on the interpretation of
    the material legal and factual circumstances, to
                                                                     the combined nomenclature as contained in Annex I to
    determine the point in time at which the legality of a
                                                                     Commission Regulation (EC) No 1734/96 of 9 September
    rule to the effect that protection against unfair
                                                                     1996 amending Annex I to Council Regulation (EEC)
    dismissal applies only to employees who have been
                                                                     No 2658/87 on the tariff and statistical nomenclature and
    continuously employed for a minimum period of two
                                                                     on the Common Customs Tariff (OJ L 238, 19.9.1996,
    years is to be assessed.
                                                                     p. 1) Ð the Court (First Chamber), composed of: D. A. O.
                                                                     Edward, acting for the President of the Chamber, L. Sevón
                                                                     (Rapporteur) and M. Wathelet, Judges; N. Fennelly,
4. In order to establish whether a measure adopted by a
                                                                     Advocate-General; R. Grass, Registrar, has given a
    Member State has disparate effect as between men and
                                                                     judgment on 9 February 1999, in which it has ruled:
    women to such a degree as to amount to indirect
    discrimination for the purposes of Article 119 of the
    Treaty, the National Court must verify whether the
    statistics available indicate that a considerably smaller        The combined nomenclature, as contained in Annex I to
    percentage of women than men is able to fulfil the               Commission Regulation (EC) No 1734/96 of 9 September
    requirement imposed by that measure. If that is the              1996 amending Annex I to Council Regulation (EEC)
    case, there is indirect sex discrimination, unless that          No 2658/87 on the tariff and statistical nomenclature and
    measure is justified by objective factors unrelated to           on the Common Customs Tariff, must be interpreted as
    any discrimination based on sex.                                 meaning that a product consisting of a rectangular
                                                                     container with a lid of coated die-cast aluminium
                                                                     (aluminium/silicon alloy with aluminium content
5. If a considerably smaller percentage of women than                predominant by weight), four steel connecting bolts and
    men is capable of fulfilling the requirement of two              four earthing bolts of copper-plated steel (packed loose in
    years' employment imposed by the rule described in               the product and yet to be inserted into threaded holes
    paragraph 3 of the operative part of this judgment, it           provided for that purpose), which is intended to receive
    is for the Member State, as the author of the allegedly          electrical terminals and holes enabling electrical circuits to
    discriminatory rule, to show that the said rule reflects         be connected, must be classified, in accordance with
    a legitimate aim of its social policy, that that aim is          Rule 2(a) of the General Rules for the interpretation of
    unrelated to any discrimination based on sex, and that           the combined nomenclature, under subheading 8536 90 85
    it could reasonably consider that the means chosen               as an incomplete junction box.
    were suitable for attaining that aim.
                                                                     (1) OJ C 295, 27.2.1997.
(1) OJ C 181, 14.6.1997.