C-360/90

Mr President, 15 January 1972, ' which provides: 'Staff Members of the Court, council members shall be released without loss of pay from their normal work if and in so far as the size and nature of the undertak- ing make such release necessary in order to perform their duties properly'. Since the 1. In this reference for a preliminary ruling, duration of the seminars exceeded her work- the Landesarbeitsgericht (Higher Labour ing hours, Mrs Botel also devoted part of her Court) Berlin asks the Court to consider the leisure time to attending them, but was paid situation of part-time workers in the light of by her employer only up to the limit of her the Community principle of equal treatment normal working hours. However, since the for men and women in the particular context seminars lasted less than 40 hours per week, of what might be termed 'in-house social which was the full-time working week in policy'. force at the time, full-time workers received their normal salary. It is common ground that if Mrs Botel had been paid up to the limit of the 40-hour full-time working week, she would also have received her salary for a 2. The Court is aware of the facts. Since July period of 50.3 hours, representing her own 1981 Monika Botel has been employed as a leisure time spent attending the seminars. She part-time home nurse by the Arbeiterwohl- brought an action before the Arbeitsgericht fahrt der Stadt Berlin e. V., a voluntary asso- (Labour Court) Berlin seeking compensation ciation providing welfare services in the in the form either of paid leave to be taken at Land of Berlin. Her average working week is a later date or of payment of DM 765.06 as 29.25 hours. Since 1985, Mrs Botel has been overtime pay. By judgment of 18 May 1990, chairman of the staff council of the Neukölln the Arbeitsgericht upheld her claim and branch of the Arbeiterwohlfahrt der Stadt granted her compensation in the form of Berlin. Between 6 September and 8 Decem- paid leave. An appeal was lodged against that ber 1989 she attended six training seminars decision. organized by the Public Service, Transport and Communications Trades Union cover- ing, inter alia, employment law, industrial relations law and the organization of work sessions for staff councils. In order to attend the courses, she was given special leave by her employer pursuant to Paragraph 37(2) of 3. The Landesarbeitsgericht Berlin, hearing the Betriebsverfassungsgesetz (Law on the appeal, referred to this Court a question industrial relations within undertakings) of which seeks, essentially, to ascertain whether

6. The Court has already held that contin- ued payment of wages to an employee in the event of illness falls within the concept of 'pay', even if a proportion of those wages is 4. There is a preliminary difficulty to be in some cases reimbursed by the sickness considered. The national court referred to insurance funds. 5 In the present case, Mrs Article 119 of the EEC Treaty and Directive Botel is not seeking permission to attend 75/117/EEC, but both the Commission and training courses, and the Court is not asked the German Government raise the question to consider the circumstances in which an whether the compensation in issue is a mat- employer may or may not treat part-time ter of pay or of working conditions. The and full-time workers differently as regards principle of equal treatment was applied to the granting of leave for such purposes. Such working conditions by Council Directive difficulties would undoubtedly have had to 76/207/EEC, 3 so it must be determined be considered from the point of view of which is the relevant legislative text. working conditions. Here, however, the only issue is compensation for time spent attend- ing such training courses, whether in the form of extra pay in respect of overtime or extra leave, paid by the employer, to be taken 5. The Court has traditionally defined 'pay', at a later date. I do not feel that too much in the field of equal treatment for men and importance should be attached to the fact women, as comprising any that the compensation may take two possible forms. If extra salary payments naturally fall within the concept of 'pay', then the same is true, in my view, of extra paid leave. In the latter case, sums are paid by the employer in respect of the employment, with no corre- 'consideration, whether in cash or in kind, sponding work being performed by the whether immediate or future, provided that employee. It is a situation very similar to that in which wages continue to be paid to an employee in the event of illness — with 2 — 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 (OJ 1975 L 45, p. 19). 3 — Council Directive 76/207/EEC of 9 February 1976 on the 4 — For example, Case C-262/88 Barber v Guardian Royal implementation of the principle of equal treatment for men Exchange [1990] ECR 1-1889. and women as regards access to employment, vocational 5 — Case 171/88 Rinner-Kühn v FWW Spezial- training and promotion, and working condi-tions (OJ Gehäudereinigung [1989] ECR 2743, paragraph 7; my Opin- 1976 L 39, p. 40). ion, p. 2751, point 15.

10. It appears that the prevailing German 7. The purpose of compensation for hours case-law holds that Paragraph 37(3) of the spent in training is to provide an employee Betriebsverfassungsgesetz cannot be applied who is a member of a staff council with a by analogy to training courses. n It is not for source of income even though he provides this Court to say whether there should be no work in return during those hours. The such application by analogy; that is a ques- principles underlying the Court's case-law tion for the national court. The question thus seem to point to the conclusion that referred by the national court does not, for compensation for training periods falls that matter, refer to that subparagraph; it is within the concept of 'pay'. quite naturally confined to seeking a ruling on the interpretation of the Community rules and, more specifically, on what is allowed or prohibited by those rules. The Court's consideration should thus be con- 8. Let us now turn to the national court's fined to the provisions of Paragraph 37(2) of question itself. Here I shall assume that the the Betriebsverfassungsgesetz. considerations set out below, on the question

10 — Emphasis added. 6 — Cited above. 11 — Judgment of the Bundesarbeitsgericht of 19 July 1977, 7 — Cited above. 1 AZR 302/74, Nachschlage-werk des Bundesarbeitsger- 8 — Paragraph 12. ichts AP 1978, N o 31, Paragraph 37 of the Betriebsverfas- 9 — Paragraph 13. sungsgesetz 1972, p. 89.

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BOTEL

11. The Court's case-law with regard to the 15. In order to ascertain whether or not position of part-time workers is quite clear. there is discrimination against part-time Since the judgments in Jenkins v Kingsgate 12 workers, it must first be established whether and Bilka v Weber von Hartz, n it has been they are treated differently from full-time established that workers.

12 — Case 96/80 Jenkins v Kingsgate [1981] ECR 911. 13 — Case 170/84 Bilka v Weber von Hartz [1986] ECR 1607. 14 — Ibid., paragraph 29. 15 — Cited above. 17. The difference in treatment thus lies in 16 — See, for example, Bilka v Weber von Hartz, paragraph 30. the fact that part-time workers are obliged to

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OPINION OF MR DARMON — CASE C-360/90

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BOTEL

Court may still indicate to the national court denied that a course in employment law or reasons which can never constitute such fac- industrial relations law requires, if it is to be tors. I propose that it should do so in the effective, the same time and the same assidu- present case, in order to provide the national ity of attendance from a part-time as from a court with a useful answer which is not con- full-time worker. fined to stating whether a difference in treat- ment exists — and its existence does not seem to be difficult to establish here.

25. Although attendance at such courses is not, strictly speaking, included among the tasks to be performed under the contract of employment, the duties of a staff council 23. In the German Government's view, the member are nevertheless not entirely unre- difference in treatment is due to the differ- lated to the employment relationship, inas- ence in working hours, and discrimination much as they serve to further employees' cannot be considered to be established unless interests and thus encourage the good indus- staff council work is regarded as a special trial relations within the undertaking which kind of work to be performed under the it is in the employer's interest to establish contract of employment. with competent and well-informed staff rep- resentatives.

councils. The difference in treatment which I 28. Two final points. When compensating have shown does not therefore appear to be part-time workers up to the limit of the full- unrelated to any consideration based on sex time working hours applicable within the within the meaning of the Court's case-law. undertaking, it is perhaps better, in view of the great variation in working hours from one day to the next, to take into consider- ation weekly or monthly rather than daily working hours. It is, however, for the national court to make that choice by deter- 27. It is still possible for the Member State mining which solution is the most likely to concerned to prove to the national court that ensure that effect is given to the Community other factors which might themselves be principle of equal treatment. The same regarded as objectively justified and unre- applies to the form which the compensation lated to any discrimination on grounds of is to take — paid leave to be taken at a later sex exist. date or additional overtime pay.

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

Article 119 of the EEC Treaty and Council Directive 75/117/EEC of 10 February 1975, on the approximation of the laws of the Member States relating to the appli- cation of the principle of equal pay for men and women, preclude application of a provision of national law which deprives part-time workers who are staff council members attending training courses which last longer than their normal working hours and which can help them to carry out their duties effectively of any compen- sation in the form of paid leave or extra pay up to the limit of the full-time working hours applicable in the same undertaking, where considerably more women than men hold such part-time posts, unless the Member State can establish that the leg- islation in question is justified by reasons which are objective and unrelated to any discrimination on grounds of sex.