C-278/93

FREERS A N D SPECKMANN ν DEUTSCHE BUNDESPOST

OPINION OF ADVOCATE GENERAL DARMON delivered on 5 July 1994 *

1. It might have been thought that the judg­ as the German Government is concerned, a ment of the Court of 4 June 1992 in Botel, ' revision, of its case-law. had settled the delicate question of the com­ patibility of the German system for compen­ sating members of works councils in Ger­ many with Article 119 of the EEC Treaty and Council Directive 75/117/EEC of 10 February 1975. 2

4. Pursuant to paragraph 46 of the Bundes­ personalvertretungsgesetz (Federal law appli­ cable to staff representation) of 15 March 1974 (the 'BpersVG'): 4

2. The heated debate provoked by that judg­ ment in Germany has prompted two further references to the Court for a preliminary rul­ ing. 3 This case is concerned with the first — 'The members of the staff committee reference, from the Arbeitsgericht Bremen. ("Personalrat") shall perform their duties free of charge' (subparagraph 1).

— 'The time which staff committee mem­ bers devote to their duties shall give rise 3. It is clear that the Court is being called on neither to a reduction of income nor to to carry out a veritable review, or even, as far remuneration. If staff committee mem­ bers are required to spend longer than their normal working hours in order to fulfil their duties, they are entitled to a * Original language: French. corresponding period of leave' (subpara­ 1 — Case C-360/90 [1992] ECR I-3589. 2 — Council Directive on the approximation of the laws of the graph 2). Member States relating to the application of the principle of equal pay for men ana women (OJ 1975 L ·Ι5, p. 19). 3 — In Case C-457/93 Kuratorium fur Dialyse und Nierentrans­ plantation v Lewark, pending, the question submitted by the Bundesarbeitsgericht concerns the same issue. 4 — BGBl., I, p. 693, as at 16 January 1991, BGBl., I, p. 47.

(1) the compensation paid to workers' rep- 8. Mrs Freers and Mrs Speckmann, the resentatives constituted pay within the plaintiffs in the main proceedings, work for meaning of Article 119 of the Treaty and the Deutsche Bundespost and are members Directive 75/117; of the Bremerhaven Post Office Staff Com- mittee (Personalrat). Whilst the collective

5 — BGBL, 1, p. 13, as at 23 December 1988, BGBl., I, p. 1 and 902. 7 — Paragraph 20. 6 — Bötel was concerned with that Law. 8 — Paragraph 26.

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agreement applicable to them provides that part-time are women, they claim, relying on the working week for a full-time worker is the judgment of the Court of Justice in 38.5 hours, they are both employed part- Botel, that the German rules are contrary to time (18 hours per week). 9 Article 119 of the Treaty and Directive 75/117/EEC.

9. During February 1992, they attended a 13. The national court is familiar with that training seminar entitled 'Introduction to the judgment. However, it wonders whether it is law applicable to staff representation'. compatible 'with essential principles of Ger­ man law' 1 1and expresses certain doubts which the judgment does not dispel.

17. Moreover, a member of a staff committee 20. That situation prompted the following essentially represents the interests of three questions: employees and does not, as his primary task, perform any duty or service in the interests of the employer for which the latter should pay.

1. Does the economic compensation accorded to a male or female employee in 18. Secondly, the national court wonders respect of work on a statutorily estab- whether those principles of unpaid work and lished employee representation body con- compensation for loss of salary might in fact stitute pay within the meaning of the constitute objective grounds for differentia- European provisions on equal pay for tion which are unconnected with any differ- men and women (Article 119 of the EEC entiation against women. Treaty and Council Directive 75/117/EEC of 10 February 1975)?

19. Thirdly, the national court observes that, if the employer were to grant a part-time worker the same compensation as that 2. If the answer to Question 1 is yes: Does granted to full-time workers, the latter the fact that under national law work on would relate no longer to the normal work- an employee representation body is ing hours but to the time spent on courses. unpaid, being governed essentially by the That fact, together with the employer's obli- loss-of-pay principle (Lohnausfallprin- gation to continue paying for overtime zip), constitute an objective ground for which employees would normally have unequal treatment which is in no way worked during the week in question, would connected with discrimination against give rise to an accumulation of financial bur- women?

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employment,' even if it does not derive from 24. In the first place, the Court is not merely the employment relationship. 15 asked whether compensation for training courses constitutes pay within the meaning of Community law 18 but, more generally, whether 'the economic compensation accorded to a male or female employee in respect of work on a statutorily established (iii) Performance of the activity in the gen- employee representation body constitute [s] eral interest of the undertaking: pay ...'.

'Staff council members ... are entrusted with 25. In the second place, new arguments and the task of safeguarding staff interests, thus information are presented to the Court promoting harmonious working relation- which might prompt it to reconsider the ships within the undertaking; which is in its classification of such compensation as pay. interests'. 16

26. Let us examine those two aspects. (iv) The purpose of the compensation:

27. The Court is thus invited to consider not 'The compensation ... is intended to ensure only the conditions applicable to compensa- that Staff council members receive income tion for training courses but also those appli- even where during periods of training they cable to normal work as staff representatives, are not performing any work as stipulated in such as participation in meetings of the com- their contracts of employment'. 17 mittee.

33. Attendance at basic and advanced train­ 31. The BetrVG provides that such time ing courses is governed by separate condi­ devoted to the works council outside work­ tions. ing hours is paid for only if it is justified 'by reasons connected with the undertaking'. 19 Under the BPersVG, they must be used for 'the performance of tasks required of them' 2 0 in that capacity. 34. The German legislation provides that, in order to take part in such training, 'staff committee members are discharged from their professional obligations, and continue to receive their pay' (paragraph 46(6), BPersVG, and paragraph 37(6) BetrVG).

32. Thus, whilst the function of staff com­ mittee member may have been classified as

19 — Pararaph 37(3) BclrVG. 35. Those provisions have been interpreted 20 — Paragraph 46(2), BPersVG. by the Bundesarbeitsgericht and the Bundes-

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Verwaltungsgericht 21 as not conferring on 37. Thus, the same training course of a dura- staff committee or works council members tion of 38.5 hours per week gives rise to the right to compensation in excess of the compensation which is always equal to the pay that they would normally have received wages which the staff representative would if they had worked, whatever the duration of have received if he had worked — the the course in question. amount received therefore differs according to whether the person concerned works full- time or part-time.

39. Each representative receives only a 'pecuniary guarantee', 23 which is determined merely by reference to his normal working time but is unconnected with his activity as a (2) time spent on training courses in order to staff representative, which is not paid as acquire the knowledge necessary to per- such: the loss-of-pay principle (Lohnausfall- form duties on the staff committee does prinzip). not qualify for any compensation other than that for loss of wages in respect of the working week (paragraph 46(6) BPersVG). 22 — Observations of the German Government, paragraph 7. See also to that effect, Schiefer DB 1993, p. 1823: 'Gegenstand der im Falle der Schulungsteilnahme gezahlten Vergütung ist also nicht die Schulungsteilnahme sondern die versäumte Arbeitsleistung.' in 'Gegenstand der im Falle der Schulung- steilnahme gezahlten Vergütung ist also nicht die Schulung- 21 — Cases cited on page 5 of the final translation of the order steilnahme sondern die versäumte Arbeitsleistung.' for reference. 23 — Order for reference, II, 1.

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'... the legal concepts and definitions estab­ lished or laid down by national law do not 46. I would add that compensation for loss affect the interpretation or binding force of of wages, in respect either of participation in Community law, or, consequently, the scope a training course or of the performance by a of the principle of equal pay for men and staff representative of his duties as such, dis­ women ...'. 25 plays certain common characteristics.

24 — Sec paragraph 46(2), second sentence, RPersVG, and para­ 26 — Judgment in Case 171/88 Rinner-Kuhn [1989] ECR 27-13, graphs 30, and more particularly 32, above. paragraph 7. 25 — Paragraph 23. 27 — Paragraph 6.

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47. It is paid by the employer and is exactly 50. The Court held in Bötel: equal to the amount of wages that the repre- sentative would have received if he had worked normally. 2 8Moreover, from both the fiscal and the social points of view, it is treated in the same way as wages. 29

'It appears that both categories of staff coun- cil members devote the same number of hours to attending the training courses. However, once the duration of training The second question courses held during the full-time working hours applicable in the undertaking exceeds the individual working hours of staff council members employed on a part-time basis, the latter receive from their employer compensa- tion which is less than that received by staff council members employed on a full-time basis and they are therefore treated different- 48. As we have seen, a part-time worker is ly.' 31 not discriminated against with regard to the performance of his tasks as a staff represen- tative properly so called: compensation is paid for the time spent in excess of the weekly hours laid down in his contract of employment. 30 51. Is that difference objectively justified?

57. One result of this is that the plaintiffs in the main proceedings attend a course of 38.5 hours duration without — or at least 54. The Commission stressed in its observa­ with only partial-compensation, since they tions 3 5 that the principle of unpaid work receive, by way of compensation, only their enables the independence of workers' repre­ normal wages calculated on the basis of part- sentatives as such to be guaranteed, in that time work. Can the same be said of a full- they should neither obtain an advantage time worker who, as such, receive compensa­ from their duties nor be penalized for them. tion corresponding to 38.5 hours? In its order for reference of 20 October 1993, giving rise to Case C-457/93, the Bunde­ sarbeitsgericht stresses that,

58. At no stage does attendance at the course, for a period of that length, fail to give rise to compensation for a full-time worker. On the other hand, a part-time 'In the interests of objective work on the worker receives no compensation for that part of the staff committee, the German leg­ part of the course which exceeds his working islature attached more importance to the week. In a judgment of 30 January 1990, the independence of the staff committee than to Landesarbeitsgericht Berlin 3 7 stated: 3 8 financial incentives to hold such posts'. 36

37 — DD 1991. p. 50. 38 — Free translation: 'the members of the works council work­ 34 — See my opinion in Batel, paragraph 19. See most recently ing part-time who arc engaged in training sacrifice their lei­ the judgment of 2-4 February 1994 in Case C-343/92 Roks sure time to the extent to which the training exceeds their [1994] ECR I-571. individual working time'.'Um ein Freizeitopfer außerhalb 35 — Paragraph 36. der individuellen Arbeitszeit geht es auch bei der Schulung 36 — Page 15 of the French translation. tcilzcitbcschaftigtcr Betricbsratmitglieder'.

'such a situation is likely to deter employees 62. The application of the principle of com- in the part-time category, in which the pro- pensation for loss of wages gives rise to dif- portion of women is undeniably preponder- fering treatment regarding compensation for ant, from serving on staff councils or from employees, which is arrived at by direct ref- acquiring the knowledge needed in order to erence to their respective contractual work- serve on them, thus making it more difficult ing hours. for that category of worker to be represented by qualified staff council members'. 41

39 — It 's relevant, in that connection, that, according to the national court, 'none of the male members of the staff com- mittees in the Bremen area works on a part-time basis' 40 — See my opinion in Bötel, paragraph 24. (grounds of the order for reference, I 1, third paragraph). 41 — Paragraph 25.

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66. Although it is regarded as ensuring the 69. The latter share the same circumstances, independence of staff representatives, the as regards income, as the employees whom principle of compensation for loss of wages they represent. There is no financial incen- nevertheless has the effect of penalizing part- tive to perform the duties of staff representa- time workers wishing to train properly to tive. perform those duties, and it should also be noted that the duration of the training bears no relation to the status of full-time or part- time worker.

70. The employer has no financial obliga- tions other than the payment of normal wages.

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73. Finally, it does not appear necessary in 77. Is the excessive financial burden which order to ensure that the principle of indepen- would thereby be imposed on the employer dence is observed: an approach more in con- such as to constitute an objective reason for formity with the principle of equal treatment discrimination? 43 for men and women could be envisaged. I have in mind, in particular, the spreading of training courses over a period of time so as to adjust them to the timetables of part-time workers.

78. Do the combined requirements of Com- munity law and national law not lead to an accumulation of charges? Would it not be preferable to adopt a simple and objective 74. The foregoing review of proportionality principle: avoid loss of wages? proves the point: the principle of compensa- tion for loss of salary cannot be regarded as an objective ground unconnected with any discrimination based on sex.

79. With respect to the Member States, the Court has held that The third question

(2) The same provisions preclude national legislation applicable to a much larger number of women than men which limits, by reference to their individual working hours, the compensation to be paid by their employer to staff com­ mittee members working part-time, in respect of their participation in training courses providing them with the knowledge needed for the work of such com­ mittees, whilst the members of such committees who work full-time are com­ pensated, in respect of their participation in the same courses, by reference to their working timetable.

Neither the principle of compensation for loss of wages nor the risk of additional financial burdens for the employer can constitute objective grounds unconnected with any discrimination on grounds of sex.

45 — As regards the impact, in terms of the total wage bill, of strict application of the principle of equal treatment for men and women, it is apparent from the order for reference that, in the Bremen Region, the number of persons affected totalled less than 30 out of a total workforce of more than 14 000 employees, namely a proportion barely exceeding 0.2% of the workforce.

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