C-109/88

HANDELS- OG KONTORFUNKTIONÆRERNES FORBUND I DANMARK v DANSK ARBEJDSGIVERFORENING, ACTING ON BEHALF OF DANFOSS

OPINION OF MR ADVOCATE GENERAL LENZ delivered on 31 May 1989 *

Mr President, Association and the plaintiff. A uniform Members of the Court, minimum wage was fixed for all employees without distinction on grounds of sex. Article 9 of the agreement allows supplements to be paid for skill, inde­ pendence and responsibility. In that respect A — Facts the pay is fixed in the individual case by individual agreement.

* Original language. German. 1 — Council Directive of 10 February 1975 on the approxi- mation of the laws of the Member States relating to the 6. '1 (a) Where it is established that a male application of the principle of equal pay for men and women (OJ 1975, L 45, p. 19) and female employee do the same work of

OPINION OF MR LENZ —CASE 109/88

equal value, who, in the view of the Court undertaking with a large number of of Justice, is the person (employer or employees (e. g. at least 100) engaged in employee) on whom the burden lies of work of the same nature or value pays on proving that a differentiation in pay average the women less than the men, between the two employees is attribu­ establish that the directive is thereby table/not attributable to considerations infringed? determined by sex?

7. 1 (b) Is it incompatible with the directive on equal pay to give higher pay to male 12. 3 (b) If so, does it follow that the two employees who do the same work as female groups of employees (men and women) employees or work of equal value solely by must on average receive the same pay? reference to subjective criteria — for example, staff mobility?

8. 2 (a) Is it contrary to the directive to give to employees of a different sex who do 13. 4 (a) In so far as it may be found that the same work or work of equal value, over a difference in pay for the same work is and above the basic pay for the job, special attributable to the fact that the two supplements for length of service, special employees are covered by different training, etc.? collective agreements, will it follow from that finding that the directive does not apply?

B — Legal assessment 19. The Industrial Arbitration Board which has made the reference is an independent body, which is required to determine disputes on the interpretation of collective I — Whether the Court is properly seised of agreements. It regularly intervenes at last the questions referred to it instance in accordance with the standard rules of procedure for the various particular trades. Under Article 22 of the Law on the Labour Court of 13 June 1973, in the 16. Doubts may be raised as to whether the absence of any agreement on the procedure Court is properly seised of the questions for settling a dispute of interpretation the referred to it, inasmuch as it could be open provisions of 'Agreed Standard Rules', to question whether the Industrial Arbi which in turn are based on an agreement tration Board is a court or tribunal for the between the Employers' Confederation and purposes of Article 177 of the EEC Treaty. the Confederation of Employees' Unions,

18. The criteria have been given more of its legislative intent. concrete definition by the requirement that a court or tribunal must operate with the consent of the public authorities. 3 The Court recognized as a court an appeals 21. An industrial arbitration board is committee whose decisions in proceedings normally composed on an ad hoc basis, so were in fact treated as final so that in an that doubts arise as to its nature as a area which involved the application of permanent body. However it is important Community law there was in practice no not to fasten on its specific establishment in effective appeal to the ordinary courts. 4 connection with a particular dispute but rather to bear in mind that these industrial 2 — Judgment of 30 June 1966 in Case 61/65 Vaatten (née Göbbels) v Management of the Beambtenfonds voor het arbitration boards have quite general juris Mijnbedrijf[1966] ECR 261 diction for the determination of a particular 3 — See judgments of 6 October 1981 in Case 246/80 C Brockmeulen v Mattarti Registratie Commissie [1981] ECR type of legal dispute. The jurisdiction

OPINION OF MR LENZ —CASE 109/88

boards. Such an arbitration board thus equal pay may be effectively implemented in satisfies the criterion of a permanent body. a legally binding manner by collective agreements are to be found, for example, in Article 4 of Directive 75 / 117 / EEC and 5 Articles 3 to 5 of Directive 76 / 207 / EEC . The Court, too, in its judgments in Cases 143/83 and 165/82 proceeds on the basis that collective agreements can lead to a 22. The arbitration boards must also be legally binding implementation of the regarded as mandatory courts, for they principle of equal treatment. Thus, since the alone are called upon to hear and determine decisions of industrial arbitration boards are disputes on the interpretation of collective reached through the application of legal agreements. As the Commission observed, rules, the boards satisfy all the criteria of a without being contradicted, if a case is 'court or tribunal' within the meaning of brought before a labour court in disregard Article 177 of the EEC Treaty. Finally it of that division of jurisdiction, the labour may be noted that the determination of court may rule that it has no jurisdiction arbitration boards normally entail a final having regard to that of the arbitration decision since they are no longer open to board. challenge by legal proceedings.

HANDELS- OG KONTORFUNKTIONÆRERNES FORBUND I DANMARK v DANSK ARBEJDSGIVERFORENING, ACTING ON BEHALF OF DANFOSS

Treaty which is already directly applicable 29. The payment of a lower hourly rate to but to implement which Directive part-time employees than to full-time 75/117/EEC, in that respect also directly employees may, for example, amount to applicable, was adopted. indirect discrimination if the group of part-time employees is composed exclusively or mainly of women and there are no objec­ tively justified grounds for a difference in pay, such as to encourage full-time employment. 8

28. The situation is different where there is indirect discrimination. Such discrimination exists if the unequal treatment is based on neutral criteria or procedures which are normally complied with by the members of one sex and thus work to the disadvantage of the group of persons affected. A positive finding of indirect discrimination is however subject to the proviso that the disadvantage 31. It is not quite clear whether the present is not justified for compelling reasons or case is concerned with direct or indirect circumstances unrelated to the sex of the discrimination. The manner in which the person concerned. 7 wages practice functions makes it difficult, if not impossible, to compare in concrete 6 — Sec judgments of 31 March 1981 in Case 96/80 Jenkins v terms the pay of men and women employees Kingsgate [1981] ECR 911 and of 27 March 1980 in Case for equal work or work of equal value or to 129/79 Macartbys Ltd vWendy Smith [1980] ECR 1275 7 — Sec, on the concept of indirect discrimination, Article 5 of the Proposal for a Council Directive on the burden of 8 — See Case 96/80, surpa, and the ludgment of 13 May 1986 proof in the area of equal pay and equal treatment for in Case 170/84 Bilka Kaufbaus GmbH v Karin Weber von women and men (OJ 1988, C 176, p. 5) Hartz [1986] ECR 1607

OPINION OF MR LENZ —CASE 109/88

compare the pay of the two groups, male objective justification, unrelated to sex, for and female. the difference in wage, if he is to exonerate himself from the charge of discrimination.

HANDELS- OG KONTORFUNKTIONÆRERNES FORBUND I DANMARK v DANSK ARBEJDSGIVERFORENING, ACTING ON BEHALF OF DANFOSS

otherwise the principle of equality would be however not be overlooked that specific frustrated already at the procedural level. comparison always forms the basis for a finding of direct discrimination.

36. By virtue of Article 6 of Directive 75/117/EEC it is expressly the task of the Member States to ensure that the principle of equal pay is applied in their legal systems. 38. Assuming that the criteria relating to The concern to ensure that the principle of supplements are applied equally to male and equal treatment is effective also underlies female employees, the question of indirect the case-law of the Court on the direct discrimination arises. In considering the applicability of Article 119 of the Treaty or situation regarding the burden of proof in Article 1 of Directive 75/117/EEC. That is such a case, it has to be assumed that there also the basis of the judgment in Case 14/83 is no direct discrimination. In accordance which, unlike the present case, was with the general rules on the burden of concerned with the interpretation of proof the plaintiffs would then have to show Directive 76/207/EEC. On the implemen­ that one or more criteria relating to tation of the principle of equal treatment the supplements apply disproportionately more Court held that 'it is for the national court frequently to members of one sex and that to interpret and apply the legislation there is thus a disadvantage related to sex. It adopted for the implementation of the is therefore indispensable to compare directive in conformity with the requirement representative groups of persons. The of Community law, in so far as it is given difficulty in this case lies in the fact that, 1 discretion to do so under national law'. 0 even in the event of actual indirect discrimi­ nation, the plaintiffs would, owing to the lack of transparency in the system of pay, have no means of adducing the requisite evidence.

40. How the employees whose pay is to 42. The employer is generally free, and this serve as basis for the calculation of the is also expressly provided in Article 9 of the average wages to be compared should be collective agreement of 9 March 1983, to selected depends upon the circumstances in grant supplements on the basis of certain the particular undertaking or firm. It is individual characteristics of the employee. necessary that they should be representative The grant of supplements must however groups whose conditions of employment make objective sense and the criteria applied should be as far as possible the same. It is must be lawful. A general reference to the not possible to state here an absolute figure existence of subjective criteria for an for the minimum size of a reference group. increase in wages in the specific case is not The point of departure is of course that sufficient to justify a difference in pay there should be the same work or work of (Question 1 (b)), since in that case it is not equal value, so that possibly the employees possible to justify objectively the fixing of of a department or of an assembly stage wages or to reconstruct the system on which may constitute a reference group. If an it is based. undertaking has a job classification system, as is the case in the main proceedings, then there may be a comparison of the average pay for women and men in a particular category. It is for the national court to determine in the individual case whether or not the reference groups are representative.

43. Generally speaking, mobility, length of 41. The rule of evidence I have described service and training are acceptable criteria would moreover in no way anticipate the for the grant of supplements in so far as proposal for a Council directive on the these are granted without reference to sex burden of proof in the area of equal pay and are objectively related to the activity and equal treatment for women and men, ' ' which has to be carried out. Their objective justification follows from the economic 11 — OJ 1988, C 176, p. 5. value of the particular individual charac-

46. It is to be observed, however, that frequently collective agreements are nego­ tiated and concluded according to branches 44. Since in the main proceedings only the of trade or industry. The objective distin­ collective agreement of 9 March 1983 guishing criterion would then, in the event applies both to women and men, Question of different pay, be membership of the 4 (a) and (b) do not call for an answer, for particular branch. That may be permissible it is not the task of the Court in references if within the particular field of application for a preliminary ruling to answer abstract of a collective agreement there is no legal questions which are of no relevance difference in treatment of employees for the purposes of the decision in the main according to their sex, which presupposes proceedings. Since, however, the national that the individual collective agreement is court has a wide discretion in judging how devised in a non-discriminatory manner far questions referred for a preliminary from the point of view of both direct and ruling are necessary for its decision and indirect discrimination. Furthermore, where since it is not clear from the reference for a the employees are members of different preliminary ruling itself that the answers to branches even the element of same work or Questions 4 (a) and (b) can be of no work of equal value may be lacking. importance for the judgment which has to be given, the following subsidiary consider­ ations are put forward in relation to the answers to those questions. 47. The mere fact that a collective agreement covers predominantly male or female workers is not in itself a ground for concluding that there is discrimination. It is not, however, possible to answer on this general level the question whether separate collective agreements for groups of 45. It is in general to be assumed that the employees are lawful. The question must principles of equal pay (Article 119 of the moreover in the first place be considered in EEC Treaty and Directive 75/117/EEC) the light of national employment law. and equal treatment (Directive 76/207/ Community law, for its part, requires that EEC) also apply to the parties to collective the principle of equal pay should also be agreements. The Member States are observed in the concrete organization of required to ensure as much in their legis­ working life by collective agreements. lation. That is already apparent from the wording of the directives themselves (Article 4 of Directive 75/117/EEC and Articles 3 to 5 of Directive 76/207/EEC) and is confirmed by the judgments of the Court in Costs Cases 165/82, 143/83, and 312/86. Parties to collective agreements cannot, therefore, derogate independently from the requirements resulting from the principle of 48. As these proceedings are, in so far as equal pay. That is so both where one the parties to the main proceedings are collective agreement applies and also where concerned, a step in the proceedings

52. If the employee has no access to the facts required to prove indirect discrimi­ nation, a rule of evidence applies to the effect that on proof of a lower average wage for women within a representative group of employees there is a presumption of discrimination.

53. 1 (b), 2 (a), (b) and (c) It is contrary to the principle of equal pay as it emerges from Article 119 of the EEC Treaty and Directive 75/117/EEC to pay, solely on the basis of subjective criteria, a male employee a higher wage than a female employee for the same work or work of equal value. It is not contrary to that principle to grant supplements in respect of individual characteristics such as

HANDELS- OG KONTORFUNKTIONÆRERNES FORBUND I DANMARK v DANSK ARBEJDSGIVERFORENING, ACTING ON BEHALF OF DANFOSS

length of service, training or mobility, provided that the criteria are objectively justified, are related to the work to be performed and are applied without discrimi­ nation.

54. 3 (a) and (b) Proof of a lower average pay for women within a representative group of employees may give rise to the presumption of discrimination. How a representative group must be composed for it to be representative depends on the factual circumstances in the undertaking or firm and is a matter for the national court to determine. That does not however mean that the average wage of women and men must always be the same, for differences may result from criteria which are independent of sex.

55. 4 (a) Parties to collective agreements are also bound by the principle of equal pay. Nor may the parties to a collective agreement derogate from that principle by means of their agreement.