C-102/88
ECLI:EU:C:1989:289
- Súd
- Súdny dvor Európskej únie
- IČS
- 61988CC0102
- Zdroj
- eur-lex.europa.eu ↗
RU'ZIUS-WILBRINK v BEDRIJFSVERENIGING VOOR OVERHEIDSDIENSTEN
OPINION OF MR ADVOCATE GENERAL DARMON delivered on 5 July 1989 *
Mr President, her employment before the incapacity arose Members of the Court, did not affect the amount of the allowance. Those who, during the year before their incapacity, received income of less than 15% of an amount equal to 260 times the 1. The Raad van Beroep te Groningen has basic amount of HFL 87.79 were deemed to submitted for a preliminary ruling a have no earnings. 4Finally — and this is the question intended essentially to determine provision at issue in this case — an insured what influence the principle of non person who 'in the year immediately before discrimination between male and female the day on which he became incapable of workers has on a legislative provision working . . . did not work for the period to relating specifically to part-time workers. be considered normal in his occupation' and who had therefore earned during the period in question 'less than an amount 260 times the basic amount' applicable to him received 2. The facts are as follows. Mrs Ruzius- an allowance calculated by reference to the Wilbrink worked part time for 18 hours a average daily income received by him week as an administrative assistant in the during the year prior to the onset of his public school system in Groningen. On 9 disability. 5 March 1981 she became subject to an inca pacity rendering her unable to work.
4. The Law of 6 November 1986 6changed 3. In the Netherlands, the Algemene the situation as from 1 January 1987. As Arbeidsongeschiktheidswet 1 (Law on inca from that date, the allowance is calculated pacity for work) of 11 December 1975 on the basis of the minimum salary fixed by (hereinafter referred to as 'the 1975 Law'), the Wet Minimumloon en Minimumvakan- which establishes a general insurance tiebijslag (Law on the minimum wage and 7 scheme against incapacity for work, grants minimum holiday pay). The insured an allowance for incapacity to work to person's previous income continues to be every insured person over 17 years of age disregarded. The same exclusion from the who received income from employment system under the 1975 Law applies to very 2 during the year before the incapacity arose. low income, which is now defined as less 8 Until 1 January 1987, the allowance was than 48 times the minimum wage. The calculated by reference to a basic amount provision concerning part-time work now which varied from HFL 43.22 to 87.79 appears in Article 10(3) and (4) of the 1975 according to the age and family situation of Law, as amended. It covers any 'entitled the insured person. 3 But the income person who, in the year immediately prior received by the insured person from his or 4 — Article 6(2) of the 1975 Law * Original language French 5 — Article 10(5) of the 1975 Law 1 — Staatsbhad 674, No 151 6 — Slaatlblaad 567 2 — Article 6(1)(a) of the 1975 Law 7 — Article 10(1) and (2) ot the 1975 Law, as amended 3 — Article 10(1) to (4) of the 1975 Law 8 — Article 6(2) of the 1975 Law, as amended
OPINION OF MR DARMON — CASE C-102/88
to the onset of his disability, did not work concerning the compatibility of a system for the period to be considered normal in like that provided for by the 1975 Law with his occupation and partly as a result thereof Article 4(1) of the Directive and the other earned less than an amount 260 times' the concerning the effect of any such incom minimum daily wage. In such circumstances, patibility on the amount of the allowance by virtue of Article 10(4) 'the basic amount for incapacity for work payable to part-time for calculation of the allowance shall be the workers. average daily income' which the insured is deemed to have earned in the year prior to his becoming incapable of working.
8. The Court has already examined the situation of part-time workers in the light of the requirements of the Community 5. Special conditions apply to certain principle of equality of treatment for male groups of insured persons. 9Thus, an Order and female workers. I had occasion to of 28 April 1980 lays down an exception for express my views on the matter in my self-employed persons, students and persons Opinion in Case 171/88 Rinner-Kühn. 11 caring for members of their families.
Such people may claim an allowance based on the minimum wage. 9. Let me point out, to dispose of the matter immediately, that the Court has held that Article 4(1) of the Directive has direct effect. In its judgment in FNV, it stated that 6. Mrs Ruzius-Wilbrink was therefore granted, as from 1 January 1985, an allowance for incapacity to work calculated by reference to her previous income from part-time work. She challenged that 'Article 4(1) .
. . is sufficiently precise and decision before the Raad van Beroep te unconditional to allow individuals, in the Groningen, claiming that the relevant absence of implementing measures adopted provision of the 1975 Law was contrary within the prescribed period, to rely upon it to Council Directive 79 / 7 / EEC of 19 before the national courts as from 23 12 December 1978 10 (hereinafter referred to as December 1984'. 'the Directive'), Article 4 of which prohibits 'any discrimination whatsoever on grounds of sex either directly, or indirectly by reference in particular to marital or family 10. It seems that the present case is the first status', since the number of female part-time in which the Court has had to consider, in workers is much higher than that of male the light of the Directive, a legislative part-time workers. provision on social security relating essen tially to part-time workers.
However, previous decisions of the Court have already dealt with similar difficulties in the neigh bouring area covered by Article 119 of the 7. The national court therefore submitted two questions for a preliminary ruling, one 11 — Of 19 April 1989 [1989] ECR 2743, at p. 2749. 12 — Judgment of 4 December 1986 in Case 71/85 [1986] ECR 3855, paragraph 21 ; see also judgments of 24 March 1987 9 — Article6(3) of the 1975 Law, as amended. in Case 286/85 McDermott and Cotter [1987] ECR 1453, 10 — On the progressive implementation of the principle of equal of 24 June 1987 in Case 384/85 Borrie Clarke [1987] ECR treatment for men and women in matters of social security 2865, paragraph 9 and of 8 March 1988 in Case 80/87 (OJ L 6, 10.1.1979, p. 24). Dik and Menkulos-Demirci [1988] ECR 1601, paragraph 8.
RUZIUS-WILBRINK v BEDRIJFSVERENIGING VOOR OVERHEIDSDIENSTEN
Treaty, which lays down the principle of And it was left to the national court to equality of treatment regarding pay. reach a decision on the latter point.
11. In its judgment in Jenkins, 13 the Court 12. In its judgment in Bilka, the Court stated that confirmed that decision, declaring that
'if ... it should be found that a much lower 'the fact that part-time work is paid at an proportion of women than of men work full hourly rate lower than pay for full-time time, the exclusion of part-time workers work does not amount per se to discrimi from the occupational pension scheme nation prohibited by Article 119 provided would be contrary to Article 119 of the that the hourly rates are applied to workers Treaty where, taking account of the diffi belonging to either category without 4 culties encountered by women workers in distinction based on sex'. 1 working full time, that measure could not be explained by factors which exclude any 17 discrimination on grounds of sex'. It added that such a difference of pay was not contrary to the principle of equality of pay provided that it was attributable 13. That dictum was transposed to the field of social security, at issue here, when the Court stated in its judgment in Teuling that
'to factors which are objectively justified and are in no way related to any discrimi 5 nation based on sex', 1 'a system of benefits in which . . . supplements are provided for which are not directly based on the sex of the beneficiaries but take account of their but that marital status or family situation and in respect of which it emerges that a considerably smaller proportion of women than of men are entitled to such 'by contrast, if it is established that a supplements is contrary to Article 4(1) of considerably smaller percentage of women the Directive if that system of benefits than of men perform the minimum number cannot be justified by reasons which exclude of weekly working hours required in order discrimination on grounds of sex'. 18
to be able to claim the full-time hourly rate of pay, the inequality of pay will be contrary to Article 119 of the Treaty where ... the pay policy of the undertaking 14. However, in Bilka the Court brought in question cannot be explained by factors about a reversal of the onus of proof since, in 16 other than discrimination based on sex'. the operative part of that judgment, it stated that 13 — Judgment of 31 March 1981 in Case 96/80 [1981] ECR 911 17 — Judgment of 13 May 1986 in Case 170/84 [1986] ECR 14 — Paragraph 10, emphasis added 1607, paragraph 29. 15 — Paragraph 11 18 — Judgment of II June 1987 in Case 30/85 [1987] ECR 16 — Paragraph 13 2497, paragraph 13.
OPINION OF MR DARMON — CASE C-102/88
'Article 119 of the EEC Treaty is infringed and effect of the measure in the hope that by a department store company which the Court would declare unlawful not only excludes part-time employees from its occu intentionally discriminatory measures but pational pension scheme, where that also those which, although wholly untainted exclusion affects a far greater number of by any such intent, were discriminatory in women than men, unless the undertaking their effect. The Court did not deal with the shows that the exclusion is based on objec matter expressly but it seems that paragraph tively justified factors unrelated to any 30 of its judgment, which states that there is 19 discrimination on grounds of sex'. no discrimination
There also the Court left it to the national 'if the undertaking is able to show that its court to decide whether the reasons given to pay practice may be explained by objectively account for the measure at issue exclude justified factors unrelated to any discrimi any discrimination. nation on grounds of sex',
rejects by implication the thesis advanced by 15. In the present case, as mentioned at the the Commission. hearing, part-time workers are the only ones to receive an invalidity allowance which depends on previous income, whilst all other categories of persons to whom the system under the 1975 Law applies receive an 17. A measure does not therefore seem to allowance based on the minimum wage. me to be incompatible merely because it has Moreover, it seems that certain full-time a discriminatory effect, provided that it is workers may have received pay lower than explained by objective factors and does not the minimum wage without that fact derive from any discriminatory intention. affecting their entitlement, under the 1975 Law, to something approaching a 'complete' allowance. It therefore seems that the situation of part-time workers is less favourable than that of full-time workers. It 18. Furthermore — and I have already is not disputed that in 1974, the only year raised this question with regard to the for which statistics were produced, 79.6% Rinner-Kühn case — is it desirable for the of part-time workers in the Netherlands Court to establish a presumption that the 20 national law is incompatible merely because were women. one of its provisions affects a much larger number of women than men? Such a presumption is wholly justified in relation to a practice adopted by an undertaking or to any agreement between employers, that is to 16. In Bilka, the Commission drew a say rules of law lower in rank in the distinction between the discriminatory intent hierarchy of legal provisions and, above all, of very limited scope. I do not think that the 19 — Emphasis added. 20 — Applicant's observations, p. 5 of the French translation; it same applies to a legislative provision. There should be noted that in Case 171/88, the statistics for 1987 is a difference in nature between an produced by the Commission show a rate of 83 % of part-time female workers in the Netherlands. employer for whom pay policy is one of the
RUZIUS-WILBRINK v BEDRIJESVERENIGING VOOR OVERHEIDSDIENSTEN
mosi important parts of his business strategy requirements of Community law and, if and the legislature, the trustee of the public necessary, to refrain from applying any interest, which must take account of a very national rule contrary to it. large number of social, economic and political factors, of which the ratio between male and female workers is just one aspect. Consequently, although it may be legit 22. That brings me immediately to the imately presumed that an undertaking second question submitted by the national cannot have been unaware of the unequal court. If it were obliged to treat the national ratio between male and female workers in provision in question as unlawful, would it certain jobs within it and therefore to raise follow that pan-time workers are entitled to the presumption that a wage measure an allowance calculated in the same way as adopted by it is unlawful, the same does not that granted to full-time workers? apply to a national legislature which is required to take account of a much wider range of matters and which cannot be presumed to be guilty of discriminatory 21 23. The Court has delivered numerous conduct. judgments which deal with this point. It has often stated that, in the absence of measures implementing Article 4(1) of the Directive,
19. In the present case, having regard to the statistics produced, the first condition laid down by decisions of this Court concerning a significant disproportion between the 'women are entitled to be treated in the numbers of male and female workers is same manner, and to have the same rules fulfilled. applied to them, as men who are in the same situation, since, where the said directive has not been implemented, those rules remain the only valid point of reference'. 22 20. As regards the second point, the Court has held that it is for the national court to determine whether or not the contested provision was adopted for purposes which are in no way related to discrimination 24. Therefore, if the national court finds based on sex. that the derogating provisions of the 1975 Law are unlawful, it must refrain from applying them. Pending the adoption of such specific measures as the Netherlands legislature may take in order to remedy the 21. That is what I propose as the tenor of situation, the national court can only apply the Court's answer to the first question. By the other provisions of the 1975 Law and virtue of the direct effect of Article 4(1) of therefore ensure that part-time workers are the Directive upheld by the Court, the treated in the same way as full-time national court is entitled to apply the workers. That is the answer that I propose domestic law in accordance with the that the Court should give to the second question. 21 — In that connection, I pointed out in [he Rinner-Kuhn case that a proposal for a directive submitted by the Commission provided in certain circumstances for a reversal of the burden of proof and 1 expressed the view 22 — Case 71/85, supra, paragraph 23, Case 384/85, supra, that accordingly, as Community law stands at present, such paragraph 13, see also Case 286/85, supra, paragraph 17, a reversal could not be presumed and Case 80/87, supra, paragraph 10
OPINION OF MR DARMON — CASE C-102/88
25. I therefore consider that the Court should rule as follows:
'(1) A legislative provision which, in the event of incapacity for work, does not grant part-time workers the allowances calculated by reference to the basic minimum wage is compatible with Article 4(1) of Council Directive 79 / 7 / EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security where that provision affects a much larger number of women than men, unless it is established before the national court that the provision was adopted for purposes which are not entirely unrelated to any discrimination on grounds of sex.
(2) If it is so established, it is for the national court to refrain from applying the rule of domestic law which is contrary to Article 4(1) of the said directive.'