17.4.2010

Official Journal of the European Union

C 100/14

Reference for a preliminary ruling from the Oberlandesgericht Innsbruck (Austria) lodged on 28 December 2009 — Pensionsversicherungsanstalt v Andrea Schwab

(Case C-547/09)

2010/C 100/22

Language of the case: German

Referring court

Oberlandesgericht Innsbruck

Parties to the main proceedings

Appellant: Pensionsversicherungsanstalt

Respondent: Andrea Schwab

Questions referred

Should Article 2(2), first indent, and Article 3(1)(c) of Directive 76/207/EEC, as amended by Directive 2002/73/EC, (1) and Article 2(1)(a) and (b) and Article 14(1)(c) of Directive 2006/54/EC (2) be interpreted as meaning that direct sex discrimination (termination/dismissal of an employed doctor) by a public pension insurance fund may be justified?

Should Article 4(1) of Directive 97/80/EEC (3) and Article 19(1) of Directive 2006/54/EC — and possibly Article 2(2), second indent, of Directive 76/207/EEC, as amended by Directive 2002/73/EC, and Article 2(1)(b) of Directive 2006/54/EC or Article 2(2)(a) in conjunction with Article 6(1) of Directive 2000/78/EC (4) — be interpreted as precluding national legislation which, in the event of actions for the annulment of terminations/dismissals inter alia on the grounds of sex, does not permit the consideration of social factors or interests, but only the assessment of evidence as to whether the sex discrimination was the predominant motive for the termination/dismissal or whether another reason to be substantiated by the employer predominated?

(1) Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions; OJ 1976 L, p. 40.

(2) Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast); OJ 2006 L 204, p. 23.

(3) 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.

(4) Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation; OJ 2000 L 303, p. 16.