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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,
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