C-171/88

RINNER-KÜHN v FWW SPEZIAL-GEBÄUDEREINIGUNG

OPINION OF MR ADVOCATE GENERAL DARMON delivered on 19 April 1989 *

Mr President, in part-time employment was much higher Members of the Court, than the number of men so employed.

1. The Arbeitsgericht Oldenburg has 4. The national court therefore referred to referred to this Court for a preliminary this Court a preliminary question relating to ruling a question which, in substance, seeks the compatibility of the Lohnfortzahlungs­ to determine the influence of the principle gesetz with the provisions of both Article that there may be no discrimination between 119 of the Treaty and Council Directive men and women employees on a legislative 75/117/EEC of 10 February 1975 (here­ provision relating to part-time employment. inafter referred to as 'the Directive'). '

OPINION OF MR DARMON — CASE 171/88

'In contrast to the provisions of Articles 117 Defrenne No 1 the Court held that statutory and 118, which are essentially in the nature pension schemes were excluded from the of a programme, Article 119, which is scope of Article 119 after pointing out that limited to the question of pay discrimination the financial contribution to the scheme between men and women workers, from workers, employers and possibly the constitutes a special rule, whose application public authorities was is linked to precise factors;

'determined less by the employment in these circumstances it is impossible to relationship between the employer and the extend the scope of that article to elements worker than by considerations of social of the employment relationship other than policy'. 5 2 those expressly referred to.'

11. Similarly, in its judgment in Newstead In his Opinion Mr Advocate General the Court held that a contribution to an Capotorti also pointed out that whilst the occupational retirement pension scheme working conditions referred to in Articles which is compulsory and is a substitute for 117 and 118 certainly included pay, pay was the general statutory scheme must be 'specifically covered' by Article 119. Article 3 considered to fall within the scope of Article 119 therefore had a specific scope. 6 118 of the Treaty but not of Article 119.

8. In its judgment in the Garland case the Court defined the concept of pay by 12. On the other hand, in its judgment in reference to: Bilka the Court held that occupational pensions established by an agreement between the employer and the Betriebsrat (works council) fell within the definition of 'any other consideration, whether in cash or 'pay'. 7 in kind, whether immediate or future, provided that the worker receives it, albeit indirectly, in respect of his employment from his employer'. 4 13. Furthermore, in its judgment in Worringham and Humphreys the Court also held that proportions of gross salary directly deducted by the employer and paid on 9. Does the continued payment of wages behalf of the employee to a pension fund set during illness fall within that definition? up as the result of collective bargaining 8 were also pay.

14. Finally, in its judgment in Liefiing the both Article 119 of the Treaty and Directive Court held that statutory social security 75/117. The Court has already stated that contributions payable by the employee that directive which directly determined the calculation of other advantages linked to salary, such as redundancy payments, unemployment benefits, family allowances and credit 'is principally designed to facilitate the 9 facilities, were pay. practical application of the principle of equal pay laid down in Article 119 and in no way alters its content or scope as defined 10 in that article'. 15. In the present case, it is the employer who continues to pay wages in the case of illness. It is true that a proportion of those wages is reimbursed by the sickness insurance funds but that provision is of 18. I shall therefore limit by observations to restricted application since it only covers Article 119 since it seems to me that the undertakings employing fewer than 20 proceedings pending before the national persons. Furthermore, the conditions for court may be resolved by an interpretation paying those wages have their genesis in the of that article alone. employment relationship since only workers who have completed a certain weekly or monthly period of work may benefit from the system. Furthermore, the sum of the 19. As I have already mentioned, the Court benefits is directly related to the wages has already considered the difficulties raised normally paid. It can therefore be said, as by part-time employment. In its judgment in the converse of the formula employed Jenkins the Court stated that in Defienne No 1, that the employer contributes in a measure determined more by the employment relationship than by considerations of social policy. All the considerations set out above, to my mind, 'the fact that part-time work is paid at an lead to the conclusion that the benefit in hourly rate lower than pay for full-time question is to be regarded as 'pay' within work does not amount per se to discrimi­ the meaning of Article 119 of the EEC nation prohibited by Article 119 provided Treaty. that the hourly rates are applied to workers belonging to either category without distinction based on sex' ."

20. In its judgment in Bilka the Court maintained the same line of reasoning, holding that 22. In this respect, the case-law of the Court gives guidelines — I dare not say instructions — for the national court to assist it in reaching the most reasonable solution. The Court requires that the 'If, therefore, it should be found that a measures chosen correspond to a real need much lower proportion of women than of on the part of the undertaking, are appro­ men work full time, the exclusion of priate with a view to achieving the part-time workers from the occupational objectives pursued and are necessary to that 15 pension scheme would be contrary to end. Article 119 of the Treaty where, taking into account the difficulties encountered by women workers in working full time, that measure could not be explained by factors 23. In the present case, it is undeniable that which exclude any discrimination on 13 in the majority of the Member States of the grounds of sex'. Community the number of women engaged in part-time employment is most often far greater than the number of men. In round numbers the percentages for 1987 which 21. However, on this point the Court were provided by the Commission in reply proceeded to reverse the burden of proof by to the question asked by the Court are as ruling in the operative part of the judgment follows: that

Federal Republic of Germany: 89% 'Article 119 of the EEC Treaty is infringed by a department store company which excludes part-time employees from its occu­ pational pension scheme, where that France: 88%

Denmark: 54 % 26. A full transposition of that case-law in this field would lead to a provision of national law being declared compatible or incompatible with the Treaty once a certain 24. The Danish Government, which has number of conditions are met, solely on the intervened in the proceedings, has indeed basis of the reasons on which that provision pointed out the specific nature of the is stated to be based. That was the full situation in Denmark. It also stressed the implication of the question asked by the disadvantages which would result from a Court of the German Government during legislative provision being declared contrary the written procedure. In view of the legal to the Treaty on the sole ground that in certainty required, would there not be some practice the provision affected female danger in making the compatibility of a employees more often than male employees: national law dependent solely on the first, the situation might change from one reasons which led to its being adopted? The year to the next and, secondly, it is incon­ reply of the German Government also ceivable for the same measure to be incom­ demonstrates the difficulties which may be patible with the Treaty in one Member State encountered in ascertaining the reasons for and compatible in another, or even both a piece of reforming legislation, especially compatible and incompatible in the same when it is introduced by Parliament. It State at the same time depending on the seems to me unwise to decide the fate of a sectors involved. general rule on the basis of subjective considerations relating to the reasons, which may be more or less clear and more or less explicit, which led to its adoption. 25. That observation leads me to a more general point. May the decisions in Jenkins and Bilka be transposed to the present case? The Commission and the plaintiff in the main proceedings take that for granted. I must confess to some hesitation on the 27. In Bilka the Commission suggested that point. The first of the two cases which gave a distinction be drawn between the discrimi­ rise to those judgments involved the wage natory intention and the discriminatory policy of an undertaking and the other case effect of the measure; the Court should a contractual pension scheme established by a group of undertakings. By contrast, the 15 — Ibid, paragraph 36

28. Consequently, it does not seem to me that a measure is incompatible with the Treaty solely because it has a discriminatory 30. What is more, at the hearing the effect, provided that it is based on objective Commission referred to its proposal for a factors and is not meant to be discrimi­ Council Directive on the burden of proof in natory. the area of equal pay and equal treatment I6 for men and women. Article 3 of that proposal provides that 'where persons ... establish at any state of proceedings before a court ... a presumption of discrimination, 29. Moreover, would it be desirable for the it shall be for the respondent to prove that Court to establish a presumption that there has been no contravention of the national law is incompatible with the Treaty principle of equality'. Article 3(2) provides solely on the basis that one of its provisions that: 'A presumption of discrimination is affects far more women than men? Such a established where a complainant shows a presumption is wholly justified when the fact or a series of facts which would, if not practice of an undertaking or an agreement rebutted, amount to direct or indirect indis­ between employers is involved, that is to say crimination'. It is not for me to interpret the rules of law of modest status in the provisions of that proposal for a directive; hierarchy of legal rules and above all of however, the manifestly unequal numbers of very limited scope. In my view, the same is male and female employees affected by the not true of a legislative provision. There is measure at issue should evidently be an essential difference between an employer, counted as one of the facts establishing such for whom wages policy is one of the most a presumption. If the Commission has important areas for his undertaking, and a legislature, which is responsible for the 16 — OJ C 176, 5.7.1988, p. 5.

32. As regards the second point, according to the Court's case-law, it is for the national court to determine whether or not the disputed provision was based on objectives related to discrimination on grounds of sex. 35. I would suggest that the Court should answer the question along the same lines.

17 — Case 96/80, paragraph 17; judgment of 8 April 1976 in Case 43/75 Defienne v Sabena (No 2) [1976] ECR 455, paragraph 18; judgment of 27 March 1980 in Case 129/79 Macarlhys and Smith [1980] ECR 1275, paragraph 10; Case 33. By virtue of the direct effect which the 69/80 Woningbam and Humphreys v Lloyds Bank Bank,, supra supra,, paragraph 23. Court has held Article 119 of the Treaty to 18 — Judgment of 4 February 1988 in Case 157/86 Murphy and have once discrimination may be identified Others v Bord Telecom Eireann [1988] ECR 673, paragraph solely with the aid of criteria of equal work 11. 19 — Judgment of II June 1987 in Case 30/85 Tailing v and equal pay without national or Bedrijfsvereniging voor de Chemische Industrie [1987] ECR Community measures being required to 2497, paragraph 18.

OPINION OF MR DARMON — CASE 171/88

36. I therefore propose that the Court should rule as follows:

A legislative provision which excludes part-time workers from the continued payment of their wages in the event of illness thereby affecting a much greater number of women than men is compatible with Article 119 of the EEC Treaty unless it is proved before the national court that the provision was based on objectives related to discrimination on grounds of sex.