C-184/89
ECLI:EU:C:1990:396
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OPINION OF MR DARMON — CASE C-184/89
OPINION OF MR ADVOCATE GENERAL DARMON * delivered on 13 November 1990
Mr President, the BAT were amended with effect from Members of the Court, 1 January 1988 but without taking into account previous periods of service. Mrs Helga Nimz is therefore claiming before the Arbeitsgericht Hamburg that the provisions in question run counter to Article 119 of the 1. The question referred to the Court for a EEC Treaty. preliminary ruling by the Arbeitsgericht, Hamburg, invites the Court to recall the well established solutions it has arrived at as regards the situation of part-time workers in 3. The Arbeitsgericht has referred to the the light of the Community principle of Court for a preliminary ruling two questions equal treatment as between men and which relate, on the one hand, to the women. compatibility with Article 119 of the EEC Treaty of a provision of a collective agreement such as the one in the present case, and, on the other hand, the conse 2, The facts are known to the Court. Mrs quences of any incompatibility in the light Helga Nimz has been employed since of the principle of autonomy of bargaining 1 January 1977 in the public service of the enjoyed by parties to a collective agreement. Freie und Hansestadt Hamburg. Since 1 January 1983, she has worked 20 hours a week and is classified in salary grade V b, case 1 a, of the Bundesangestelltentarif 4. The first question evokes what is now a vertrag (Collective Wage Agreement for consistent line of case-law established by the Federal Employees) (hereinafter referred to Court. ' Where a measure discriminates as 'the BAT'). After six years' service in that against part-time workers, and it is estab grade, staff are reclassified in salary lished that that measure affects a much grade IV b, case 2. On 28 January 1988, greater number of women than men or vice the Hamburg authorities refused to allow versa, it is contrary to the principle of equal her to pass to salary grade IV b, case 2, treatment unless it can be demonstrated that referring to the provisions of Paragraph 23 a it may be explained of the BAT. It is provided therein that account is to be taken of the full duration of a period of service during which the employee was regularly employed for at least three-quarters of the normal working 'by objectively justified factors unrelated to hours of a full-time employee but only half any discrimination on grounds of sex'. 2 of that period is to be taken into account where the employee is employed for at least 1 — Judgment of 31 March 1981 in Case 96/80 Jenkim [1981] ECR 911, judgment of 13 May 1986 in Case 170/84 Bilka half of the working hours of a full-time [1986] ECR 1607; judgment of 13 July 1989 in Case employee but less than three-quarters of 171/88 Rinner-Kühn [1989] ECR 2743; judgment of 13 December 1989 in Case 102/88 Ruzius-Wilbrink [1989] those working hours. Those provisions of ECR 4311; judgment of 27 June 1990 in Case C-33/89 /Kowalska[1990) ECR I-2591. 2 — Bilka judgment, cited above, at paragraph 30 and the * Original language: French. operative part.
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Thus the Court has declared to be incom 6. The first solution appears to me to be patible with the requirements of Community appropriate. The provision in question is law the exclusion of part-time workers from solely intended to determine the a company pension scheme, 3from the right remuneration payable to the employee to continued payment of wages in the event during the course of his or her career. It of illness 4or from the grant of a temporary does not determine the grant of other allowance in the case of termination of benefits, such as additional paid holidays,
5 employment, the difference in the hourly the grant of loans at preferential rates or the basis of remuneration in relation to full-time access to higher ranking posts which form 6 workers, finally the difference in calcu part of working conditions. Since it is solely lating allowances in the event of incapacity intended to provide for a salary increase in for work. 7 favour of employees having a certain length of service it falls, it seems to me, exclusively within the sphere of remuneration.
It is therefore in the light of Article 119 that the situation in the present case must be examined. The solution to the present case would moreover not be different on the 5. That case-law is identical both as regards basis of Directive 76/207, of which Article 8 Article 119 of the Treaty, which relates to 3(1) could usefully have been relied on in equal treatment as regards remuneration this case by Mrs Nimz. and in regard to Council Directive 79 / 7 / EEC of 19 December 1978 9relating
10 to social security benefits, and it is difficult to see on what grounds it might not 7. In that connection there can be no doubt be extended to cover access to employment that part-time workers are subject to and working conditions where the principle discrimination in relation to full-time of equal treatment has been introduced by employees since they require twice the length Council Directive 76/207/EEC of of service in order to move to the higher 9 February 1976. 11However, it is necessary salary grade. to examine whether, in the present case, Paragraph 23 a of the BAT falls within the sphere of remuneration and, consequently, Article 119 of the Treaty, or within the sphere of working conditions and, conse
8. Furthermore, according to the order for quently, within the terms of Directive reference, more than 90% of employees 76/207 mentioned above. working less than three-quarters of the normal working hours of a full-time 3 — See Bilka ludgment. mentioned above employee are women whereas the 4 — Rmner-Kubn judgment, cited above I-or a commentary on this ludgment, see J Shaw., European LAW Review, proportion goes down to 55% when the December 1989, p 428 working hours are greater than three- 5 — Kowalika ludgment, cited above quarters of the working hours of a full-time 6 — Jenkins judgment, cited above. worker. 7 — Ruzins-Wilbrink judgment. cited above 8 — Cases 96/80, 170/84, 171/88, C-33/89, cued above. 9 — Directive on the progressive implementation of the principle of equal treatment between men and women as regards social security (OJ 1979 L 6, p 24). 10 — Case 102/88, cued above 11 — Directive on the implementation of the principle of equal 9. It remains to examine whether that treatment for men and women as regards access to employment, vocational training and promotion, and difference may be explained by Objectively working conditions (OJ 1976 L 39, p 40). justified factors unrelated to any discrimi-
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nation on grounds of sex'. On that point the discrimination on grounds of sex to be iden German Government, the United Kingdom tified'. and the City of Hamburg are unanimous in urging the Court not to examine that question since, it is said, in accordance with the Court's case-law, to fall within the 11. Although it is not for the Court to competence of the national court. appraise the facts, it seems to me that there is nothing to prevent the Court from stating, if necessary, that arguments which are too general may not be regarded as objective 10. That case-law appears to me to be less criteria. categorical. Certainly in the Bilka judgment, the Court held that:
12. In the present case, the City of Hamburg claims that full-time workers 'it is for the national court, which has sole acquire skills and abilities more quickly on jurisdiction to make findings of fact, to account of their work than part-time determine whether and to what extent the workers. 15 The German Government grounds put forward by an employer to stresses the greater experience of full-time explain the adoption of a pay workers. 16
practice ... may be regarded as objectively 12 justified economic grounds'.
13. Yet, as the Commission rightly points 1 out, 7 the BAT does not establish a Nevertheless, in the Rinner-Kühn judgment progressive relationship between length of the Court itself refuted the argument of the service and remuneration since employees German Government that working at least three-quarters of the normal working hours of full-time workers are assimilated to the latter. Moreover, as far as the criterion of length of service is 'workers whose period of work amounted concerned, the Court held in the Danfoss to less than 10 hours a week or 45 hours a 1 judgment 8that month were not as integrated in, or as dependent on, the undertaking employing 3 them as other workers'. 1
'it is also not to be excluded that ... it may involve less advantageous treatment of by replying that women than of men in so far as women have entered the labour market more recently than men or more frequently suffer an interruption of their career. Nevertheless, 'those considerations, in so far as they are since length of service goes hand in hand only generalizations about certain categories of workers, do not enable criteria which are 14 — Rinner-Kiibn judgment, paragraph 14. 15 — Written observations, p. 13. both objective and unrelated to any 16 — At p. 7 of the observations. 17 — P. 11 of the observations. 12 — Bilka judgment, paragraph 36. 18 — Judgment of 17 October 1989 in Case 109/88 Danfon 13 — Rinner-Kühn judgment, paragraph 13. [1989] ECR 3199.
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with experience and since experience length of service, regard being had to the generally enables the employee to perform nature of the duties performed. his duties better, the employer is free to reward it without having to establish the importance it has in the performance of 9 specific tasks entrusted to the employee'. 1 16. Finally, it should be recalled that the difference in treatment was brought to an end by an amendment, with effect from 1 January 1988, to the provisions at issue and the fact that that amendment was not 14. Certainly it could be deemed necessary made retroactive may be explained, as to take account of length of service not in the German Government itself states in years but in hours of work performed, as its written observations, 20 by financial proposed by the United Kingdom, but on considerations. The latter are certainly not condition that that is to facilitate negligible but they cannot prevail over the progression to different duties, entailing new principle of the equal treatment of men and responsibilities and consequently presup women. posing a certain amount of experience. In the present case, the length of service required is merely intended to enable access to be gained to a higher wage grade without any alteration in the nature of the duties 17. In any event the 1988 amendment performed. Accordingly, the taking into render irrelevant the arguments put forward account of experience in terms of actual by the German Government 21 to the effect hours of work does not appear to be an that experience is acquired more rapidly by objective justification. full-time workers.
18. I therefore propose that the Court 15. Doubtless the situation would be should not merely recall the principles of its different if it was a question of granting existing case-law but should also point out promotion and thus ensuring access to a that general considerations based on the fact higher post entailing different duties or new that full-time workers are said to have more responsibilities. Even in such a case, it seems experience than part-time workers do not to me that it would be necessary to take constitute sufficiently specific and objective into consideration the nature of the post in criteria unrelated to any discrimination on question — experience is not as decisive a grounds of sex. criterion for the post of maintenance worker as it is for that of the head of an adminis trative department — and that in such matters it is not possible to accept a general and abstract rule. It would therefore be for 19. The second question is in its content the national court to examine, in identical to that which the same court raised accordance with the principle of propor 22 in the Kowalska case. I stated then in my tionality, whether it is actually necessary to take into account the experience gained by 20 — P 4 oí the observations. 21 — P. 6 of the written observations 19 — Al paragraph 24 22 — Case C-33/89, cited above
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23 24 Opinion that the Defrenne II judgment, no discrimination between full-time and by stating that Article 119 applies both to part-time staff. Autonomy of bargaining is legislative provisions and to the provisions not affected in any way. It is simply of collective bargaining agreements and by exercised having regard to the need to limiting ratione temporis the direct effect of observe the requirements of the Community that article, necessarily meant that national law principle of equal treatment. courts had to apply to the disadvantaged group the provisions of collective agreements the benefit of which had hitherto been withheld from it. The Court followed my opinion on this point by 21. I would also like to make some brief holding that observations on the question whether the Court should, as in the Defrenne II judgment, limit the temporal effects of the judgment to be delivered in this case. I 'where there is indirect discrimination in a would advise the Court against this. The provision of a collective agreement the direct effect of Article 119 of the EEC members of the group disadvantaged as a Treaty has been acknowledged in result of that discrimination must be treated Community law since 1976. The social in the same manner and must have the same partners are therefore not exempt from arrangements applied to them as to other 25 taking into account the requirements of that employees'. provision when they negotiate collective agreements. Accordingly, it does not seem that the Court is required on grounds of 26 legal certainty to limit the effects ratione 20. As I pointed out then, the parties to the collective agreement are free to amend temporis of the judgment to be given. That, the provisions at issue, even by removing a moreover, was the decision of the Court in benefit from all employees, provided there is the aforementioned Kowalksa judgment.
22. I therefore conclude that the Court should hold as follows:
(1) Article 119 of the EEC Treaty must be interpreted as meaning that it precludes the application of a provision of a collective agreement which withholds from part-time workers alone the possibility of full account being taken of their
23 — At paragraph 20. 24 — Judgment of 8 April 1976 in Case 43/75 Defrenne v Sabena [1976] ECR 455. 25 — Kowalska judgment, cited above, at paragraph 20. 26 — Opinion in the Kowalska case, cited above, at paragraph 23.
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length of service for the purpose of progression to a higher salary grade, where it is found that a much lower percentage of men than women work part-time, unless the employer can establish that such provision is justified by objective factors unrelated to any discrimination on grounds of sex.
(2) Where there is indirect discrimination in a provision of a collective agreement, the members of the group which is disadvantaged as a result of that discrimi nation must be treated in the same manner and must have the same arrangements applied to them as to other employees, arrangements which, failing the correct application of Article 119 of the EEC Treaty, remain the only valid system of reference.
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