Notice for the OJ

 

Reference for a preliminary ruling by the Landesgericht für Zivilrechtsachen Wien by order of that court of 7 April 2003 in the case of Monika Herbstrith against Republic of Austria

(Case C-229/03)

Reference has been made to the Court of Justice of the European Communities by order of the Landesgericht für Zivilrechtsachen Wien (Regional civil court, Vienna) of 7 April 2003, received at the Court Registry on 26 May 2003, for a preliminary ruling in the case of Monika Herbstrith against Republic of Austria on the following questions:

Is EU law concerning equal treatment of men and women at work, in particular Directive 76/207/EEC ¹, directly applicable, so that, as to amount, a claim for compensation under Paragraph 15(1) of the B-GBG may be obtained to the full extent of the damage occasioned, irrespective of any limitation under Austrian domestic legislation or, in the absence of any such direct applicability of EU law, is there a claim founded on state liability for compensation to the full extent of the damage?

In the assessment of claims in respect of the foregoing is the rule concerning the burden of proof in Article 4 of Council Directive 97/80/EC ² directly applicable and, if so,

(a)    does that apply on the basis that an expert opinion within the meaning of Paragraph 22(1) of the B-GBG is sufficient for the purposes of attestation if it appears conclusively and unreservedly that there is discrimination and it cannot be ruled out that such discrimination arose for gender-related reasons, with the result that in the case giving rise to this reference the opinion of the federal committee on equal treatment of 9 November 1998 satisfies this requirement

(b)    does that apply notwithstanding an opinion as mentioned above on the basis that where the plaintiff proves or even where the plaintiff substantiates that in the filling of the post the applicant preferred to the plaintiff was less well-qualified than the plaintiff the rule of evidence under this directive comes into effect

(c)    and on the basis that proof to the contrary may only be regarded as conclusive if it leads to the factual finding that the candidate appointed was better suited or that in actual fact a non-gender-related reason was the decisive factor in the appointment of a less well-suited candidate?

____________

¹ - OJ 1976 L 39, p. 40.

² - OJ 1997 L 14, p. 6.