C-33/89
ECLI:EU:C:1990:152
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OPINION OF MR DARMON — CASE C-33/89
OP I NI O N OF MR ADVOCATE GENERAL DARMON delivered o n 28 M a r c h 1 9 9 0 *
Mr President, in full-time employment in 1987 had been Members of the Court, 55.5% in the public services properly so called and 52.5% in the other services, that percentage reached 77.3 and 97.8% respectively in the case of part-time 1. The specific difficulties of part-time employment. Moreover, among part-time working in relation to the principle of equal workers working 20 hours or more a week, pay for men and women once again 90.2% are women. underlies the questions submitted for a preliminary ruling by the Arbeitsgericht Hamburg (Federal Republic of Germany). 4. Accordingly, two questions have been submitted for a preliminary ruling, which concern in essence, first, the compatibility of the Collective Agreement with Article 2. Mrs Kowalska was employed by the Free 119 of the EEC Treaty and, secondly, the Hanseatic City of Hamburg as a court clerk effects of any incompatibility on the from 1 October 1974 to 31 July 1987. She freedom of contract of parties to collective occupied a part-time post. At the end of her agreements. 60th year she retired. Although since then she has been in receipt of a retirement pension, she was refused payment of a severance grant ('Übergangsgeld') under 5. T h e first question presupposes the Article 62 of the Bundesangestelltentarif- provision of a solution to a preliminary vertrag (Federal Civil Service Employees' difficulty, namely the question whether the Collective Agreement, hereinafter referred severance grant instituted by the Collective to as 'the Collective Agreement'), on the Agreement has, or has not, the legal ground that she had not been in full-time attributes of 'pay'. The parties to the main employment. She thereupon commenced proceedings disagree on this point. It proceedings against the City of Hamburg should, however, be pointed out that the before the Arbeitsgericht, claiming that the difficulty is relevant only in determining the provisions of the Collective Agreement were Community measures by reference to which contrary to Article 119 of the EEC Treaty the relevant national provisions will have to and to Council Directive 75/117/EEC of 10 be considered: Article 119 of the Treaty February 1975.' applies if pay is in issue, but Article 5(1) of Council Directive 86/378/EEC of 24 July 1986 2 if it is a social security benefit. Incidentally, it may be added that both those articles have direct effect 3 and that 3. In its decision referring the matter to the either of them could therefore be relied on Court, the national court noted that, whereas the percentage of female workers 2 — Council Directive 86/378/EEC on the implementation of the principle of equal treatment for men and women in * Original language: French. occupational social security schemes (OJ L 225, 1 — Council Directive 75/117/EEC on the approximation of 12.8.1986, p. 40). the laws of the Member Sutes relating to the application 3 — In the case of Article 119 of the Treaty, see the judgment of the principle of equal pay for men and women (OJ of 8 April 1976 in Case 43/75 Defittine //[1976) ECR 455, L 45, 19.2.1975, p. 19). paragraph 10.
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by Mrs Kowalska in proceedings against the severance grant established by the Collective City of Hamburg. Agreement should be set against those criteria. The grant is paid to full-time employees who, on termination of employment, are at least 21 years of age 6. For many years the Court of Justice has and have remained with the same employer had occasion to lay down the difficult for a continuous period of at least one dividing line between pay and social security year. 8 Certain other conditions, too, must benefits. 4 In the Garland judgment the be satisfied; most importantly, the termin Court defined the concept of pay as ation of the employment may not be attri butable to the fault of the employee, nor may the employee have obtained a grant payable 'any . . . consideration, whether in cash or in on dismissal, have found alternative kind, whether immediate or future, employment immediately afterwards or provided that the worker receives it, albeit have refused to take up a new post. 9 indirectly, in respect of his employment Furthermore, entitlement to the severance from his employer'. 5 grant does not arise in the event of redundancy due to internal ration alization. 1 0 It seems that, in practice, the severance grant is paid almost exclusively in It was by virtue of that case-law that, in the cases of retirement, or departure connected Bilka judgment, the Court was prepared to with childbirth. 1 1 Lastly, the amount of the regard as 'pay' the occupational pensions severance grant is determined by the latest provided by an agreement between the wage and the length of employment. 1 2 employer and the staff committee. 6
7. I would add that, in a case still pending, 7 9. In denying that it is in the nature of the Court also has to give a ruling as to 'pay^, the City of Hamburg bases itself on whether a redundancy payment is in point the fact that provision for the severance of law 'pay'. grant had previously been made by regu lation, until the conclusion of the Collective Agreement on 23 February 1961. 1 2
8. The Court seems to be guided by two criteria: first, whether there is a payment — albeit indirect — by the em 10. I do not find that argument relevant. ployer to the worker and, secondly, whether First, it rests on a legal situation which no there is a close link between the longer prevails. Secondly, as was observed employment and the award at issue. The above, the criterion was not adopted by the Court in its judgments on the matter. 4 — Sec judgments of 25 May 1971 in Case 80/70 De/renne I On the contrary, I consider the grant in [1971] ECR 445, of 15 June 1978 in Case 149/77 Defrenne ///[1978] ECR 1365, paragraphs 19 and 20, of 13 May question to be directly connected with the 1986 in Case 170/84 Bilka [1986] ECR 1607, of 11 March 1981 in Case 69/80 Worringham and Humphreys [1981] employment relationship, by virtue both of ECR 767, of 18 September 1984 in Case 23/83 Liefiing [1984] ECR 3225 and of 3 December 1987 in Case 192/85 NewMaJ[ľ)87] ECR 4753. 8 — Article 62(1) of the Collective Agreement.
5 — Judgment of 9 February 1982 in Case 12/81 [1982] ECR 9 — Article 62(2) of the Collective Agreement. 359, paragraph 5. 10 — Article 7(4) of the Collective Agreement on the protection 6 — Case 170/84, cited above, paragraphs 20, 21 and 22. of employees from redundancy measures, referred to by the City of Hamburg in its written observations, at p. 21. 7 — Case C-262/88 Barber, (judgment of 17 May 1990, [19901 ECR 1-1889, at page 1-1912), see the Opinion of Mr 11 — See the observations of the City of Hamburg, at p. 16. Advocate General Van Gerven, paragraphs 13 to 16. 12 — Ibid., at p. 15.
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the conditions governing entitlement to the 12. The first condition, under which the award and of the rules regarding its quanti- measure in question must affect a far larger fication. Moreover, the severance grant is number of women than men, is undeniably paid to the employee by the employer fulfilled in this case, in view of the statistics direct. As was explained during the oral supplied by the Arbeitsgericht in its decision procedure, the employer alone bears the requesting a preliminary ruling. cost of financing the award. All those factors seem to suggest that the severance grant should be recognized as 'pay' within the meaning of Article 119. 13. With regard to the justification put forward for the disputed provision, the City of Hamburg submits: 'On account of the difference in the basic social situation 11. I now propose to consider whether or between part-time and full-time staff, en- not the disqualification of part-time workers titlement to the severance grant was delib- from the award is discriminatory. T h e erately limited to the latter, because it is case-law of the Court in this field is now only in the case of full-time workers, who well established. In the Bilka judgment, the meet their own needs and those of their Court held that: families entirely from the income derived from employment, that there is a need for temporary assistance financed by the 'Article 119 of the EEC Treaty is infringed employer'. 1 7 by a department store company which excludes part-time employees from its occu- pational pension scheme, where that exclusion affects a far greater number of 14. The Court has already dismissed such women than men, unless the undertaking justification. Where the German shows that the exclusion is based on objec- Government claimed, in the Rinner-Kühn tively justified factors unrelated to any case, that discrimination on grounds of sex'. 13
'workers engaged in less than 10 hours' In this context the Court reverses the onus work a week or 45 hours' work a month did of proof, irrespective of whether the not show the same degree of integration in provision at issue is contractual or legis- the undertaking, or the same economic lative. H The Court of Justice leaves to the dependence upon it, as did other national court or tribunal the task of workers', l 8 appraising whether the reasons set out as justification for the contested measure are unrelated to any discrimination 15 and it requires the means chosen to meet a the Court ruled that genuine need and to be suitable and necessary for attaining the desired aim. ' 6
13 — Case 170/84, cited above, in the operative pan of the 'inasmuch as those considerations stand as judgment (emphasis supplied). M — See judgment of 13 July 1989 in Case 171/88 Rinntr-Kühn mere generalizations affecting certain [1989] ECR 2743, and also the judgment of 13 December categories of workers, they do not point to 1989 in Case C-102/88 Ruziul-Wilbrink [19891 ECR 4311. 15 — Ibid. 17 — Written observations, at p. 18. 16 — Case 170/84, cited above, paragraph 36. 18 — Case 171/88, cited above, paragraph 13.
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objective criteria which are free from any finding that the Netherlands law in question discrimination on grounds of sex'. 19 was incompatible with Article 4(1) of Directive 7 9 / 7 / E E C , 2 0 introducing equal treatment in matters of social security. On that point the Court ruled as follows: 15. The marked similarity of the justifi- cation produced in the present case seems to call for the same response. Accordingly, I propose that the answer to the first question 'in the absence of adequate measures should be that Article 119 of the EEC implementing Article 4(1) of Directive 79/7, Treaty must be interpreted as rendering and in the face of indirect discrimination on unlawful the provisions of a collective the part of the State, the group set at a agreement which enable employers to disadvantage by that discrimination is exclude part-time workers from the benefit entitled to be treated in the same manner, of a severance grant on termination of their and to have the same rules applied to it, as employment for reasons which are not the other recipients, since, where the said attributable to the worker, if those directive has not been properly provisions affect a far higher number of implemented, those rules remain the only women than men, unless the employer can valid point of reference'. 21 demonstrate in proceedings before the national court that they are justified by objective factors unrelated to any discrimi- nation on grounds of sex. That judgment merely confirmed an estab- lished line of case-law whereby, in the absence of measures to implement Article 16. The second question concerns the 4(1) of Directive 79/7, effects of any finding of incompatibility on the freedom of contract enjoyed by the parties to a collective agreement. The question is whether, in the event that Article 'women are entitled to be treated in the 62(1) of the Collective Agreement in same manner, and to have the same rules question is declared incompatible with applied to them, as men who are in the Community law, part-time workers become same situation'. 22 entitled to a severance grant proportionate to the hours they work or, conversely, whether the freedom of contract of the parties to a collective agreement precludes 18. The only novel feature of the present conferment of such a right. case is that it concerns a contractual rather than a legislative provision, since it is contained in a collective agreement.
17. Similar difficulties have long since been 20 — Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal resolved by the Court in circumstances treatment for men and women in matters of social security where the measure at issue was a legislative ( O J L 6, 10.1.1979, p. 24). 21 — Case C-102/88, cited above, paragraph 2 1 . provision rather than a collective agreement. 22 — Judgments of 4 December 1986 in Case 71/85 Federatie Quite recently, in the Ruzius-Wilbrink case, Nederlandse Vakbeweging [1986] ECR 3855, paragraph 22, the national court submitted questions as to of 24 June 1987 in Case 384/85 Borne Clarie [1987] ECR 2865, paragraph 13; see also the judgments of 24 March the implications which would flow from a 1987 in Case 286/85 Norah McDermott and Ann Colter [1987] ECR 1453, paragraph 17 and of 8 March 1988 in Case 80/87 A. Dit, A. Menkutos-Demirci and H. G. W. 19 — Case 171/88, cilcd above, paragraph 14. Laar-Vreeman [1988] ECR 1601, paragraph 10.
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19. I do not consider that this difference 21. It is only in respect of clauses in should preclude the application of the collective agreements '[where] the concern case-law cited above. Article 4 of Directive for protection which originally inspired 75/117 provides: 'Member States shall take them is no longer founded' that Directive the necessary measures to ensure that 76/207 requires the Member State to provisions appearing in collective request labour and management to agreements, wage scales, wage agreements undertake their revision. 27 Thus, with or individual contracts of employment regard to working conditions and access to which are contrary to the principle of equal employment, the directive draws a pay shall be, or may be declared, null and distinction according to whether or not the void or may be amended'. Several later contested clauses in the collective directives reproduce the same provisions. 2} agreements were justified by a concern for Moreover, the Court construes that obli- protection which has ceased to exist — for gation very strictly, since it requires that example, the protection of women in their clauses in agreements which are incom- capacity as parents or older workers (both patible with the principle of equal treatment being categories to which male as well as may be rendered inoperative even when female workers may belong). 28 Although the collective agreements are not legally that is so, the Court has none the less set binding. 2 4 limits on referring the matter back for collective negotiation; in a judgment declaring that the French Republic had failed to fulfil its obligations, the Court criticized
20. It is also my opinion that in its judgment in Defrenne II the Court, by acknowledging that Article 119 of the 'national legislation which, several years Treaty applied not only to legislative after the expiry of the period prescribed for provisions but also to collective labour the implementation of the directive, makes agreements 2 5 and by limiting ratione the two sides of industry responsible for temporis the direct effect vested in that removing certain instances of inequality article, 2 6 necessarily took the view that the without laying down any time-limit for national courts had to extend to the disad- compliance with that obligation'. 29 vantaged group those provisions contained in collective agreements whose benefits had previously been withheld from it, and that only the Court of Justice itself could, in its judgment, confine that consequence to 22. As far as equal pay is concerned, it is those workers who had commenced judicial undeniable that Directive 75/117 contains proceedings or had lodged an equivalent no provision referring the matter back for complaint. collettive negotiation. It need hardly be added that the clause depriving part-time 23 — Anieles 3(2)(b) and 5(2)(b) of Council Directive workers of the benefit of the severance 76/207/EEC of 9 February 1976 on the implementation of grant cannot be regarded as arising out of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (OJ L 39, 14.2.1976, 27 — Articles 3(2)(c) and 5(2)(c). p. 40); Article 7 of Directive 86/378/EEC, cited above. 28 — On this point, see judgment of 25 October 1988 in Case 24 — Judgment of 8 November 1983 in Case 165/82 Commission 312/86 Commission v France [1988] ECR 6315, v United Kingdom [19SÌ] ECR 3431. paragraph 14. 25 — Case 43/75, cited above, paragraph 1 of the operative part 29 — Case 312/86, cited above, paragraph 22; for a commentary of the judgment. on that judgment, see M. T. Lanquetin and H. Masse- 26 — Case 43/75, cited above, paragraph 5 of the operative part Dessen, 'Les droit particuliers pour les femmes dans les of the judgment. conventions collectives', Droit social, No 718, p. 551.
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'concern for protection'. Consequently, 24. It is still open to the Court to limit the merely by virtue of the incompatibility of effects of the judgment in this case ratione Article 62 of the Collective Agreement with tempons, as it did in the Defrenne II Article 119 of the EEC Treaty, part-time judgment. However, I propose that the workers must receive the same rights to Court should refrain from doing so. As the claim the severance grant — in proportion Commission noted during the oral to their previous wage, of course — as those procedure, the direct effect of Article 119 occupying full-time posts. has been recognized in Community law since 1976. Labour and management cannot therefore exempt themselves from 23. There is, moreover, no impairment of observance of its requirements when nego- the freedom of contract enjoyed by the tiating collective agreements. The situation parties to the Collective Agreement, because today is not what it was at the time of the those parties are free to undertake the Defrenne II judgment, when for the first revision of the relevant provisions of that time the Court was about to recognize the agreement, and may even remove the direct effect of Article 119. It does not benefit of the severance grant from all therefore seem to me that considerations of workers, on condition that no discrimi- legal certainty should induce the Court to nation between full-time and part-time limit ratione temporis the effects of the employees is introduced. ruling it gives.
25. I therefore conclude that the Court should rule as follows:
'(1) Article 119 of the EEC Treaty must be interpreted as rendering unlawful the provisions in a collective agreement which enable employers to exclude part-time workers from the benefit of a severance grant on the termination of their employment for reasons not attributable to the worker himself, if those provisions affect a far higher number of women than men, unless the employer can demonstrate that they are justified by objective factors unrelated to any discrimination on grounds of sex.
(2) If indirect discrimination in matters of pay is practised by an employer acting in pursuance of a collective agreement, the group set at a disadvantage by that discrimination is entitled to be treated in the same manner and to have the same rules applied to it pro rata as the other recipients, since, where there has
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not been a proper application of Article 119 of the EEC Treaty or of Article 4 of Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women, those rules remain the only valid point of reference.'
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