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C 304/6 EN Official Journal of the European Union 13.12.

2003

JUDGMENT OF THE COURT Council Directive 97/80/EC of 15 December 1997 on the


burden of proof in cases of discrimination based on sex (OJ
1998 L 14, p. 6), the Court (Fifth Chamber), composed of:
(Fifth Chamber) A. La Pergola (Rapporteur), acting as President of the Fifth
Chamber, P. Jann and S. von Bahr, Judges; L.A. Geelhoed,
Advocate General; H.A. Rühl, Principal Administrator, for the
Registrar, has given a judgment on 23 October 2003, in which
of 23 October 2003 it has ruled:

In Joined Cases C-4/02 and C-5/02 (Reference for a


preliminary ruling from the Verwaltungsgericht Frankfurt
am Main): Hilde Schönheit v Stadt Frankfurt am Main and
between Silvia Becker v Land Hessen (1) 1. A retirement pension paid under a scheme such as the one
established by the Gesetz über die Versorgung der Beamten und
Richter in Bund und Ländern of 24 August 1976, in the
(Social policy — Equal pay for men and women — Applica- version published on 16 March 1999, falls within the scope of
bility of Article 119 of the EC Treaty (Articles 117 to 120 of Article 119 of the EC Treaty (Articles 117 to 120 of the EC
the EC Treaty have been replaced by Articles 136 EC to 143 Treaty have been replaced by Articles 136 EC to 143 EC) and
EC) and Article 141(1) and (2) EC and of Directive 86/378/ of Article 141(1) and (2) EC. Those provisions preclude
EEC or Directive 79/7/EEC — Meaning of ‘pay’ — Civil legislation, such as that deriving from Paragraph 85 of the
service pension scheme — Calculation of the old-age pension abovementioned law in conjunction with the old version of
for part-time civil servants — Discriminatory treatment as Paragraph 14 thereof, which may entail a reduction in the
compared with full-time workers — Indirect discrimination pension of civil servants who have worked part-time for at least
based on sex — Conditions governing justification for a part of their working life, where that category of civil servants
objective reasons unrelated to any discrimination on grounds includes a considerably higher number of women than men,
of sex — Protocol concerning Article 119 of the EC Treaty unless the legislation is justified by objective factors unrelated to
(now Protocol concerning Article 141 EC) — Temporal any discrimination on grounds of sex.
effects)

(2003/C 304/08)
2. It is for the national court, which has sole jurisdiction to assess
the facts and interpret the national legislation, to determine
whether and to what extent a legislative provision which,
(Language of the case: German) though applying independently of the sex of the worker, actually
affects a considerably higher percentage of women than men is
justified by objective factors unrelated to any discrimination on
(Provisional translation; the definitive translation will be published grounds of sex.
in the European Court Reports)

Restricting public expenditure is not an objective which may be


relied on to justify different treatment on grounds of sex.

In Joined Cases C-4/02 and C-5/02: References to the Court


under Article 234 EC by the Verwaltungsgericht Frankfurt am The different treatment of men and women may be justified,
Main (Germany) for a preliminary ruling in the proceedings depending on the circumstances, by reasons other than those
pending before that court between Hilde Schönheit and Stadt put forward at the time when the measure introducing the
Frankfurt am Main (C-4/02), and between Silvia Becker and difference in treatment was introduced.
Land Hessen (C-5/02), on the interpretation of Article 119 of
the EC Treaty (Articles 117 to 120 of the EC Treaty have been
replaced by Articles 136 EC to 143 EC), of the Protocol
concerning Article 119 of the EC Treaty, annexed to the EC National legislation, such as that deriving from Paragraph 85
Treaty by the Treaty on European Union (now the Protocol of the Gesetz über die Versorgung der Beamten und Richter in
concerning Article 141 EC), of Article 141(1) and (2) EC, of Bund und Ländern in conjunction with the old version of
Council Directive 79/7/EEC of 19 December 1978 on the Paragraph 14 thereof, which has the effect of reducing a
progressive implementation of the principle of equal treatment worker’s retirement pension by a proportion greater than that
for men and women in matters of social security (OJ 1979 L 6, resulting when his periods of part-time work are taken into
p. 24), of Council Directive 86/378/EEC of 24 July 1986 on account cannot be regarded as objectively justified by the fact
the implementation of the principle of equal treatment for that the pension is in that case consideration for less work or
men and women in occupational social security schemes (OJ on the ground that its aim is to prevent civil servants employed
1986 L 225, p. 40), as amended by Council Directive 96/97/ on a part-time basis from being placed at an advantage in
EC of 20 December 1996 (OJ 1997 L 46, p. 20), and of comparison with those employed on a full-time basis.
13.12.2003 EN Official Journal of the European Union C 304/7

3. Protocol No 2 concerning Article 119 of the Treaty establishing 1. Articles 1(4)(k) and 6(8) of Council Directive 90/496/EEC of
the European Community and the Protocol concerning 24 September 1990 on nutrition labelling for foodstuffs must
Article 141 EC annexed to the EC Treaty are to be interpreted be interpreted as meaning that, first, the value of a nutrient
as precluding the application of Article 119 of the Treaty and such as vitamin C which is indicated on a foodstuff following
Article 141(1) and (2) EC respectively to benefits provided an analysis of the foodstuff carried out by the manufacturer
under an occupational social security scheme payable in respect may correspond to the value of that nutrient in the foodstuff in
of periods of employment prior to 17 May 1990, subject to the question at the end of its minimum conservation period and,
exception for workers or those claiming under them who have second, that the determination of the permissible differences
before that date initiated legal proceedings or raised an between the value stated and the value established in the course
equivalent claim under the applicable national law. of an official check is, in the present state of Community law,
within the competence of the Member States.

(1) OJ C 109 of 4.5.2002. 2. Consideration of the third question has not disclosed any factor
of such a kind as to affect the validity of Directive 90/496.

(1) OJ C 109 of 4.5.2002.

JUDGMENT OF THE COURT

(Sixth Chamber)
JUDGMENT OF THE COURT
of 23 October 2003
(Fifth Chamber)
in Case C-40/02 (Reference for a preliminary ruling from
the Unabhängiger Verwaltungssenat im Land Niederöster- of 23 October 2003
reich): Margareta Scherndl v Bezirkshauptmannschaft
Korneuburg (1)
in Case C-109/02: Commission of the European Communi-
ties v Federal Republic of Germany (1)
(Directive 90/496/EEC — Nutrition labelling of foodstuffs
— Vitamin content — Declared value — Average value
— Reference date — Permissible differences between the (Failure of a Member State to fulfil obligations — Sixth
declared value and the value established in the course of an VAT Directive — National legislation providing for a
official check — Proportionality — Legal certainty) reduced rate for musical ensembles and soloists provided the
latter organise the concert themselves)
(2003/C 304/09)
(2003/C 304/10)
(Language of the case: German)
(Language of the case: German)
(Provisional translation; the definitive translation will be published
in the European Court Reports) (Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-40/02: Reference to the Court under Article 234 EC


by the Unabhängiger Verwaltungssenat im Land Niederöster- In Case C-109/02, Commission of the European Communities
reich (Austria) for a preliminary ruling in the proceedings (Agents: E. Traversa and G. Wilms) v Federal Republic of
pending before that court between Margareta Scherndl and Germany (Agents: W.-D. Plessing and M. Lumma): Application
Bezirkshauptmannschaft Korneuburg, on the interpretation for a declaration that, by applying a reduced rate of value
and validity of Articles 1(4)(k) and 6(8) of Council Directive added tax to services provided directly to the public by musical
90/496/EEC of 24 September 1990 on nutrition labelling for ensembles or for a concert organiser and to services provided
foodstuffs (OJ 1990 L 276, p. 40), the Court (Sixth Chamber), directly to the public by soloists, but applying the standard
composed of: J.-P. Puissochet, President of the Chamber, rate of that tax to the services of soloists working for an
R. Schintgen, V. Skouris, F. Macken and J.N. Cunha Rodrigues organiser, the Federal Republic of Germany has failed to fulfil
(Rapporteur), Judges; J. Mischo, Advocate General; R. Grass, its obligations under the third subparagraph of Article 12(3)(a)
Registrar, has given a judgment on 23 October 2003, in which of the Sixth Council Directive 77/388/EEC of 17 May 1977
it has ruled: on the harmonisation of the laws of the Member States relating