C-399/92

3. A part-time employee ' works hours in excess of the contractual working week. The 2 — The collective agreement for federal employees (Bundesan- gestelltentarifvertrag). employer pays them at the same rate as ordi- 3 — See Articles 15(1), 17(1) and 35(1), second sentence, (a), of nary hours of work. The collective agree- the BAT, applicable in Cases C-399/92, C-425/92 and C-78/93. The collective agreement relating to private health insurance scheme employees (Ersatzkassentarifvertrag), applicable in Case C-409/92, the collective agreement for employees covered by the miners' insurance fund (Knappschaftsangestelltentarifvertrag), applicable in Case * Original language: French. C-34/93 and the collective agreement applicable to employ- ees in the industrial cleaning sector (Rahmentarifvertrag für 1 — 19.5 hours a week in Case C-399/92, 23.75 hours in Case die gewerblichen Arbeitnehmer im Gebäudereinigerhand- C-409/92, 30 hours in Case C-425/92, not given in Case werk), applicable in Case C-50/93, contain equivalent provi- C-34/93, 3.75 hours % 6 days a week in Case C-50/93, 21 sions. hours a week, and subsequently three-quarters of the normal working week, in Case C-78/93. 4 — OJ 1975 L 45, p. 19.

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OPINION OF MR DARMON — JOINED CASES C-399/92, C-409/92, C-425/92, C-34/93, C-50/93 AND C-78/93

5. The questions which have been referred 6. Let us examine the first question. relate essentially to the following three points: 5

7. Four preliminary remarks are called for.

(1) Is there indirect discrimination of the kind prohibited by Article 119 of the Treaty and the directive where a collec- tive agreement provides for overtime supplements only for overtime worked in excess of the normal full-time work- ing hours, with no supplement for over- 8. In the first place, the discussion which time worked by part-time employees — follows applies both to Article 119 of the w h o are primarily women — short of Treaty and to Article 1 of the directive that threshold? implementing it.

14. O n each occasion, before even inquiring 12. That article lays down the principle of into the possibility of justification, the Court equal pay for men and women 'for equal considered it necessary to determine whether work'. Care is taken to state in the third there was unequal treatment between full- paragraph, under (b), that equal pay means time workers and part-time workers or a sit- 'that pay for work at time rates shall be the uation which worked to the disadvantage of same for the same job'. 8 Article 1 of the the latter. directive provides that the principle of equal pay '... means, for the same work or f 'or work to which equal value is attributed, the elimi- nation of all discrimination on grounds of sex with regard to all aspects and conditions of remuneration'. 9

15. That may be so where, in identical working conditions, part-time employees are paid at an hourly rate lower than that accorded to full-time workers. 1 2

13. It was precisely with regard to legislation or provisions contained in collective agree- ments concerning part-time work that the Court has developed the case-law on indirect 16. It is the same where such employees are discrimination: 10 '... once a disadvantage excluded from occupational pension resulting from the application of criteria not schemes u or deprived of pay when sick 14 or based on sex concerns a considerably larger of the right to a temporary allowance on ces- number of women than men, that situation is sation of the employment relationship. 15

7 — Case C-262/88 Barber [1990] ECR 1-1889, paragraph 12, and, most recently, Case C-l 73/91 Commission v Belgium 11 — Ibidem. [1993] ECR 1-673, paragraph 13. 12 — Case 96/80 Jenkins [1981] ECR 911, paragraph 10 et seq. 8 — My emphasis. 13 — Case 170/84 Bilka [1986] ECR 1607, paragraph 27. 9 — My emphasis. 14 — Case 171/88 Rinner-Kühn [1989] ECR 2743, paragraphs 10 — See Darmon and Huglo: L'égalité de traitement entre Us 10 to 12. hommes et les femmes dans la jurisprudence de la Cour de 15 — Kowalska (cited in footnote 6), paragraph 13. In the two justice des Communautés européennes: un univers en expan- last-mentioned cases the contested rule was applied by the sion, RTDE 1992, p. 1, 14. BAT.

20. What about the provision in a collective agreement which provides for overtime

16 — Nimz (cited in footnote 6), paragraph 12. 17 — Case C-360/90 Bötel [1992] ECR 1-3589, paragraph 17. 18 — Case C-102/88 Ruzius-Wilbrink [1989] ECR 4311, para- graph 13. 19 — Cited in footnote 13, paragraph 27. See also Rinner-Kükn, 23. In that situation, therefore, the same paragraph 10, Kowalska, paragraphs 13, 19 and 20, and Bötet, paragraphs 16 and 17. work, of equal value, is paid in the same

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HELMIG A N D OTHERS

fashion, regardless of whether it is performed full-time workers but also to part-time by a full-time or by a part-time employee. 20 workers whose contractual hours are more than five.

24. In addition, the conditions for obtaining 27. That view is puzzling. the supplement — the 'threshold' above which the supplement is payable — are fixed objectively by the collective agreement and do not depend on the terms of the individual contracts of employment.

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OPINION OF MR DARMON — JOINED CASES C-399/92, C-409/92, C-425/92, C-34/93, C-50/93 AND C-78/93

portion to their working hours. I consider 34. The discussion of the second question is that to be 'the only valid point of reference', thus a subsidiary matter, relevant only if the to quote Kowalska. 2I Court replies to the first question in the affirmative.

35. Is the exclusion by a collective agree- 31. There would be unequal treatment con- ment of part-time employees from any kind ferring an advantage on part-time employees, of overtime supplement justified by objective however, of a significance inversely propor- factors unrelated to considerations based on tional to the length of their contractual grounds of sex? working hours if the supplements were pay- able as soon as those hours were exceeded.

36. The Court has held that

32. As the United Kingdom rightly points out, the effect of that approach would be to dissuade employers from taking on part-time employees whose pay for the same number 'It is for the national court, which has sole of hours worked would be more cosdy for jurisdiction to assess the facts and interpret the undertaking which finds it necessary to the national legislation, to determine whether have recourse to overtime. 22 and to what extent a legislative provision, which, though applying independently of the sex of the worker, actually affects a greater number of women than men, is justified by reasons which are objective and unrelated to any discrimination on grounds of sex'. 23

38. In Rammler25 the Court stated that the directive did not prohibit 'the use, in a job classification system for the purpose of 'Article 119 does not have the effect of determining rates of pay, of the criterion of requiring an employer to organize its occu- muscle demand or muscular effort or that of pational pension scheme in such a manner as the heaviness of the work if, in view of the to take into account the particular difficulties nature of the tasks involved, the work to be faced by persons with family responsibilities performed does require the use of a certain in meeting the conditions for entidement to degree of physical strength, so long as the such a pension'. 27 system as a whole, by taking into account other criteria, precludes any discrimination on grounds of sex'. 26

42. In this case, to take such factors into account would have the effect of conferring an advantage on part-time employees com- pared with full-time employees who may, however, have the same family commit- ments.

39. Similarly, the additional fatigue and the reduction in leisure-time caused by working overtime in addition to the ordinary working week constitute objective reasons which may justify the exclusion by a collective agree- 43. I conclude therefore that the additional ment of part-time employees from supple- physical effort and the restriction on the use ments where the overtime they work does of free time entailed in working overtime not exceed those hours. constitute objective reasons to be appraised by the national courts, which may justify a

24 — Bilka, cited above, paragraph 36. 25 — Cited in footnote 20. 26 — Paragraph 17. 27 — Paragraph 43.

46. If the Court considers that in such a case supplements are payable, they can only be proportional to the number of hours 49. In my Opinion in Nimz, cited above, I worked. said that 'the direct effect of Anicie 119 of the E E C Treaty has been acknowledged in Community law since 1976. The social part- ners are therefore not exempt from taking into account the requirements of that provi- sion when they negotiate collective agree- ments'. 31 47. That follows from the statement of the Court in Kowalska, citing the judgment in Rttzitts-Wilbrink,2S that: 29 — Paragraph 19. 30 — Ibidem. See also paragraphs 19 and 20 of Nimz, cited above. 31 — Paragraph 21 of the Opinion ([1991] ECR1-312). See also paragraph 24 of my Opinion in K&walska ([1990] ECR 28 — Cited in footnote 18. 1-2605).

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HELMIG AND OTHERS

50. It will be noted that in Kowalska and collective agreement, it did not restrict the Nimz, in which the Court found indirect effects of the decision ratione temporis. discrimination in a provision contained in a

51. I therefore propose that the Court rule as follows:

— Article 119 of the EEC Treaty and Council Directive 75/117/EEC of 10 Feb- ruary 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 do not pro- hibit a collective agreement from providing for the payment of overtime sup- plements only where the normal working week fixed for full-time employees is exceeded;