C-297/93
ECLI:EU:C:1994:272
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GRAU-HUPKA
OPINION OF ADVOCATE GENERAL JACOBS delivered on 29 June 1994
My Lords, both a statutory and a supplementary old- age pension. Because she receives a full pen- sion, her employer (the defendant) takes the view that the Bundes-Angestellten- Tarifvertrag (Collective Wage Agreement for Federal Employees, hereafter 'the BAT') does not apply to her, since Paragraph 3n of that agreement excludes employees with a second occupation. As a result Mrs Grau- 1. In this case the plaintiff, a German female Hupka is paid less than if she came under the part-time employee, has instituted proceed- BAT and receives a lower hourly wage than a ings before the Arbeitsgericht Bremen chal- full-time employee, which she claims to be lenging a German rule which permits her unlawful. employer to pay part-time employees who also have a main occupation proportionately less than full-time employees. Although the Arbeitsgericht assumes that the part-time employees adversely affected by the rule are predominantly men, it considers that the plaintiff may be able to rely on the Commu- nity provisions on equal treatment and equal pay to claim higher pay, on the basis of the rather elaborate line of reasoning described below.
3. Paragraph 2(1) of the Beschäftigungs- förderungsgesetz (Law to Promote Employ- ment, hereafter 'the BeschFG') provides that an employer must not treat a part-time employee differendy from full-time employ- ees, unless there are objective grounds justi- fying such different treatment. According to 2. Mrs Grau-Hupka has been a music the case-law of the Bundesarbeitsgericht teacher employed by the Stadtgemeinde Bre- (Federal Labour Court), however, the fact men (City of Bremen) in the Jugend-und that a part-time employee has a main occu- Volksmusikschule since 1 October 1956. pation providing him with a secure social When she retired from full-time employment position constitutes such an objective ground on 1 October 1991 she continued to work for different treatment. It appears to be there part-time and is now also in receipt of established case-law in Germany that the receipt of an old-age pension must be regarded as equivalent to having such a main * Original language: English. occupation.
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4. It may also be noted that in the course of constitute an objective reason for pay- her previous career, which serves as the basis ing him less in respect of the part-time for calculating her pension, the plaintiff employment? worked part-time for five years in order to bring up her children. According to the rules of the Sozialgesetzbuch (Code of Social Law) VI, the periods spent bringing up chil- dren are also taken into account in the pen- sion calculation. However, the plaintiff falls under a transitional provision of the Code 2. If question (1) is answered in the nega- which has the effect in her case of limiting tive: that period to one year. The referring court deduces that Mrs Grau-Hupka is thereby put at a disadvantage in terms of pension entitlement as a result of having worked part-time when bringing up her children.
Does the principle of equal pay for men and women in Article 119 of the E E C Treaty and Council Directive 75/117/EEC of 10 February 1975 prohibit drawing a pension from being treated in the same way as a main 5. O n the face of it, those facts and rules do occupation affording social security if not seem to give rise to any questions that pension is reduced by loss of involving the Community provisions on earnings as a result of bringing up equal treatment and equal pay. That is not children?' however the view of the Arbeitsgericht Bre- men, which has put the following questions to the Court:
6. Those questions, and in particular the first, can only really be understood after a description of the reasoning developed by the referring court. Before examining that '1. Does the principle of equal treatment reasoning, however, I should mention the for men and women as regards access to Commission's suggestion that the Court employment under Article 1(1) and should not answer the questions. The Com- Article 3 of Council Directive mission considers that the referring court 76/207/EEC of 9 February 1976 require does not give a sufficient account of the facts a national law which prohibits any dis- in relation to the first question, and that the crimination without objective reason second question seems to present no link against part-time employees to be inter- with the claim before the national court. It preted as meaning that the fact that such will be more convenient to deal with those an employee also has a main occupation observations together with the substance of affording him social security does not the questions.
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The first question employment, vocational training and promo- tion, and working conditions. 1
8. That reasoning is corroborated, in the view of the Arbeitsgericht, by the fact that public service employers such as the Stadtge- meinde Bremen are obliged to operate on the 7. The Arbeitsgericht argues that Paragraph basis of sound economic principles, by virtue 2(1) of the BeschFG, requiring an objective of rules laid down in the Haushaltsgrund- ground for different treatment of full-time sätzegesetz (Framework Law on the Budget), and part-time employees, must be inter- which applies to the Federal authorities and preted in accordance with Community law. the Länder, and in the Bremischen Lande- The Arbeitsgericht then develops an elabo- shaushaltsordnung (Budget Regulations for rate argument to the effect that to regard the the Land Bremen). Such employers would fact that part-time employees also have a therefore be required to employ, if possible, main occupation as such an objective ground people they can pay less, such as part-time — as does the defendant, in accordance with workers who also have a main occupation. established German case-law — is not in conformity with Community law, because it entails indirect discrimination on the basis of sex. Indeed, the argument goes, in today's society most of the part-time workers who also have a main occupation are men, because the traditional role of women in the family generally does not allow them to have such a workload outside the home. If the rel- evant rules are interpreted as allowing part- time workers who also have a main occupa- 9. The defendant claims, however, that con- tion to be paid less than other part-time stitutional rules do not allow it to have workers, employers will primarily seek to regard to remuneration when employing a employ part-time workers of the first kind. person. Those rules guarantee equal rights Since that category ex hypothesi largely con- for all Germans as regards access to public sists of men, such an interpretation consti- sector employment. The German Govern- tutes indirect discrimination against women ment adds in its observations that for ease of with respect to access to employment, which calculation most of the public employers pay infringes Articles 1(1), 2(1) and 3(1) of all part-time employees equally anyway. Council Directive 76/207/EEC on the imple- mentation of the principle of equal treatment for men and women as regards access to 1 — OJ 1976 L 39, p. 40.
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10. At this point it may be useful to recall purporting to exclude persons with another the purpose of the plaintiff's action before occupation from the scope of the BAT the Arbeitsgericht and the question put by allows the plaintiff to be paid less. However, the latter to the Court. The plaintiff claims quite apart from the fact that the plaintiff, that she should receive higher pay, i. e. pay who is in part-time employment, has not in proportion to that received by full-time herself been the victim of discrimination employees. In order to succeed in an action with respect to access to employment con- based on discrimination with respect to pay trary to Directive 76/207, she cannot in my she would have to show that she is paid less view rely indirectly on that directive in order by reason of her sex. However, the plaintiff to challenge discrimination with reference to has made no such claim. O n the contrary, the pay. Indeed it is clear from the preamble to Arbeitsgericht states that part-time employ- Directive 76/207 that the scope of the latter ees who also have a main occupation, and is distinct from that of Directive 75/117 on hence are proportionately less well paid than equal pay. Directive 76/207 is intended to full-time employees, are predominantly men. complement Directive 75/117 by extending It might therefore be wondered how Com- the principle of equal treatment to access to munity law can be invoked to support the employment, vocational training and promo- plaintiff's claim. tion and to other working conditions: see the second and third recitals. Moreover, the two 'directives are based on different provisions of the Treaty. Directive 75/117, which imple- ments the principle of equal pay specifically laid down in Article 119 of the Treaty, is based on Article 100, whereas Directive 76/207 is based on Article 235, which pro- vides for the adoption of measures to attain one of the objectives of the Community in cases where the Treaty has not provided the necessary powers.
11. The Arbeitsgericht's question does not however relate to Council Directive 75/117/EEC on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women 2 but to Directive 76/207 on equal treatment. It asks in substance whether the latter directive precludes reliance by an employer on the existence of a main occupa- tion in order to justify different treatment with respect to pay. In its order for reference it reasons that, if the Court gave an affirma- tive reply to that question, the defendant in the main proceedings would not be able to rely on Paragraph 3n of the BAT, which b y 12. The position would be different if the Stadtgemeinde Bremen had refused to employ the plaintiff as a part-time worker 2 — OJ 1975 L 45, p. 19. because she did not also have a main occupa-
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tion and therefore could not be paid less. She upon in relation to a claim for higher pay. It might then have sought to argue that the is certainly possible to have doubts about the rules providing the opportunity to pay part- relevance of the Arbeitsgericht's question time workers who also have a main occupa- having regard to the nature of the plaintiff's tion less than others involved indirect dis- claim and the circumstances of the main pro- crimination against women. ceedings. However, it appears sufficient, in order to provide the Arbeitsgericht with the guidance which it seeks, to give a negative reply to its question.
14. I therefore consider that the first ques- 13. The Commission considers that the tion should be answered in the negative. Court should not answer the Arbeitsge- richt's first question. It refers to the Court's judgment in Telemarsicabruzzo, where it was held that the referring court should at least define the factual and legal framework in which the questions referred arise, as well as the factual hypotheses on which the ques- tions are based. 3 According to the Commis- The second question sion, the Arbeitsgericht has not supplied enough factual information to enable the Court to decide whether indirect discrimina- tion actually occurs. It seems to me however that the Telemarsicabruzzo judgment is not relevant here. What was lacking in that case was a sufficient account of the factual and legal framework of the main action. In that 15. With respect to the second question, respect, the Arbeitsgericht has provided all which is prompted by the plaintiff's claim the necessary information. While it has not that insufficient account was taken, for the yet established to what extent the alleged purposes of calculating her pension, of the indirect discrimination against women actu- period which she spent bringing up children, ally occurs, it none the less explains the fac- the reasoning of the Arbeitsgericht again tual hypothesis underlying its question. seems to me rather far-fetched. It starts from Moreover, it would serve no useful purpose the very reasonable assumption that more to receive further information from the women than men stay home for some time Arbeitsgericht since it would still have to be for the purpose of bringing up children, and held that Directive 76/207 cannot be relied that as a result more women than men see their pension 'reduced' in application of the relevant German rules, which — it will be remembered — were of a transitional nature. 3 — Joined Cases C-320/90, C-321/90 and C-322/90 Telemarsica- bruzzo [1993] ECR 1-393, paragraph 6 of the judgment. It is then suggested that, where such a
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OPINION OF MR JACOBS — CASE C-297/93
'reduced' pension is regarded as income from would have to argue that the reduction of a person's main occupation, thus allowing her pension is not in accordance with the his employer to pay him a lower remunera- Community's equal treatment rules. How- tion in respect of his part-time employment, ever, in relation to her pension there is there is indirect discrimination with respect clearly no discrimination incompatible with to such remuneration, contrary to Arti- the provisions of Council Directive cle 119 of the Treaty and to Directive 75/117. 79/7/EEC on equal treatment in social secu- rity matters. * In fact, Article 7(b) of that directive allows the Member States, in dero- gation from the rules on equal treatment, to grant 'advantages in respect of old-age pen- 16. The Commission takes the view that this sion schemes ... to persons who have brought second question has no connection with the up children', and to provide 'benefit entide- plaintiff's action, as in her case the 'reduc- ments following periods of interruption of tion' of her pension is only minimal. I do not employment due to the bringing up of chil- think, however, that that is the appropriate dren'. But the directive in no way obliges answer to the question. them to do so.
17. I fail to see any possible discrimination against Mrs Grau-Hupka in relation to her pay. Her total income may be less, but that is 18. I therefore consider that the second due to the 'reduction' of her pension, not to question should also be answered in the neg- any inequality in her pay. If anything, she ative.
Conclusion
19. I am accordingly of the opinion that the questions referred by the Arbeitsger- icht Bremen should be answered as follows:
(1) The principle of equal treatment for men and women as regards access to employment under Article 1(1) and Article 3 of Council Directive
4 — OJ 1979 L 6, p. 24.
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76/207/EEC does not preclude a national law which prohibits any discrimina- tion without objective reason against part-time employees from being inter- preted as meaning that, where a part-time employee also has a main occupa- tion providing him with a secure social position, that constitutes an objective reason for paying him less in respect of the part-time employment.
(2) The principle of equal pay for men and women in Article 119 of the EEC Treaty and Council Directive 75/117/EEC of 10 February 1975 does not pre- clude the receipt of a pension from being treated as a main occupation if the pension is reduced by loss of earnings as a result of bringing up children, with the result that the person concerned receives a lower wage in respect of part- time employment than a person who does not have a main occupation.
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