C-1/95

GERSTER v FREISTAAT BAYERN

OPINION OF ADVOCATE GENERAL LA PERGOLA delivered on 22 October 1996 *

I — Introduction II — Facts

A — Case C-1/9Í

1. The questions raised by the Bayerisches 2. The facts P ; 'mg rise to the questions Verwaltungsgericht (Administrative Court), raised in Case C-l/95 may be summarized as Ansbach, and the Finanzgericht (Finance follows. O n 1 August 1966 Mrs Hellen Ger- Court), Bremen, concern the compatibility ster entered the service of the Bavarian State of certain provisions of German legislation finance administration, where she was made on public sector employment with the prin- a probationary official on 1 May 1968 and ciple of equal treatment for men and women, given a permanent appointment on 27 June laid down in Article 119 of the Treaty and 1977. Mrs Gerster took unpaid leave governed by Directives 75/117 ' and between 7 September 1984 and 6 September 76/207. 2 The Court is asked in particular to 1987, after which she worked part-time — rule on the lawfulness of statutory regula- one-half of normal working hours — at the tions under which the administration takes local finance administration office. into account periods of employment com- pleted on a part-time basis — for the pur- poses, respectively, of promotion, and exemption of an employee from a public examination — differently from those com- pleted on a full-time basis.

3. By letter of 2 December 1993, Mrs Ger- * Original language: Italian. ster applied for a vacancy with the 1 — Council Directive 75/117/EEC of 10 February 1975 on the Nuremberg-West Tax Office. In her letter approximation of the laws of the Member Sutes relating to the application of the principle of equal pay for men and she asked for her part-time employment women (OJ 1975 L 45, p. 19). since September 1987 to be treated as full- 2 — Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment of men time employment for the purpose of calcu- and women as regards access to employment, vocational lating length of service when it came to training and promotion, and working conditions (OJ 1976 L 39, p. 40). assessing her merits as a candidate.

6. O n 20 May 1994, following confirmation of the measure, Mrs Gerster brought pro- ceedings before the Verwaltungsgericht, 8. If, however, Mrs Gerster's case is viewed arguing inter alia that the decision adopted from a different angle, the Verwaltungsger- was contrary to the principles enshrined in icht believes that the LBV should be assessed Community law concerning the equal treat- in terms of a possible infringement of Com- ment of men and women. Mrs Gerster munity legislation on equal access to promo- alleged that the administration, acting in tion. N o t only does the calculation of length accordance with the relevant domestic legis- of service play a role in the evaluation of lation, had not treated the periods she had applications and in determining the order in worked on a part-time basis as equivalent to which officials are placed on the promotions full-time employment for the purposes of establishing her position on the promotions list. 3 — The LBV provides that: 'Periods of employment during which the hours worked are less than half normal working hours are not to be taken into account for the purposes of calculating length of service. Periods of employment during which the hours worked are at least hall of normal working hours are treated as equivalent to two-thirds for the purposes of calculating length of service. Periods of employment dur- ing which tne hours worked exceed two-thirds of normal 7. O n the view that Article 119 of the Treaty working hours are deemed equivalent to periods of full-time also applies to public sector employees, the employment for the purposes of calculaung length of service' (emphasis added). Verwaltungsgericht wishes to ascertain 4 — See Case C-184/89 [1991] ECR 1-297. The Court held in whether Section 13(2), second sentence, of that case that Article 119 of the Treaty precludes a collective agreement entered into within the national public service the Bavarian regulations on career structure from providing for the period of service of employees work- ing at least three-quarters of normal working ome to be fully ('Laufbahnverordnung' ('the LBV')) — taken into account for access to a higher salary grade, where which provides that, for the calculation of only one-half of such period of service is taken into account in the case of employees whose working hours are between length of service, an employee who works one-half and three-quarters of those normal working hours. The contested rules of the Bundesangestelltentarifvertrag for more than half the full-time hours, but (the 'BAT', a collective wage agreement for public sector employees) set those conditions for automatic (rectius, prac- less than two-thirds, is to be treated as work- tically automatic) access to a higher salary grade for employ- ing two-thirds of full-time hours — concerns ees w h o had completed six years' service.

*(1) Is Article 119 of the EC Treaty appli- 10. In the course of the proceedings, obser- cable to public servants? vations were submitted under Article 20 of the Statute by the applicant, the defendant administration, the Irish Government, the United Kingdom Government and the Com- mission, all of whom attended the hearing. (2) If Question 1 is to be answered in the The Greek Government participated only in affirmative, is there an infringement of the oral procedure. Article 119 of the EC Treaty and of Council Directive 75/117/EEC in the form of indirect discrimination against women where Section 13(2), second sentence, of the Laufbahnverordnung (regulations on career structure) pro- vides that, for the purpose of calculating the length of service of public servants, periods of employment involving work- ing hours of at least one-half to two- 11. One last point. The LBV underwent thirds of normal working hours are substantial amendments in 1995. Those regu- counted only as two-thirds of normal lations now provide that, as from 17 October working hours? 1995, for the purposes of calculating length of service in promotion procedures, part- time and full-time employees are to be assessed in the same way. 5 The amendment takes effect only as from that date. N o provi- (3) If Question 1 is to be answered in the sion has been made for situations which affirmative, is there an infringement of arose before then. Council Directive 76/207/EEC in the form of indirect discrimination against women in regard to access to career 5 — The provision in question is Section 13(2) of the progression (promotion), where Section Laufbahnverordnung, as last amended (GVB1. 1996, 99 et seq.). It also provides that, in order to determine how shorter 13(2), second sentence, of the Laufbahn- periods of work are to be quantified for the purposes of calculating length of service, it is necessary to take into verordnung provides that, for the consideration the situation as a whole in each individual case.

Mrs Kording, who was born in 1953, is a case officer in the Oberfinanzdirektion (Principal Revenue Office), Bremen. She entered public service in 1972 and initially, until 14 November 1980, worked full-time; between that date and 31 October 1993 she worked 20 hours per week; from 1 Novem- ber 1993 until 18 March 1994, she worked half-time, and since 19 March 1994, she has 15. O n 9 March 1993 Mrs Kording insti- worked for 26 hours per week. tuted proceedings before the Finanzgericht, claiming that the binding opinion should be annulled and the administration directed to adopt an opinion confirming that the requirements for exemption from the quali- fying examination had been satisfied. 13. By letter of 21 October 1992, Mrs Kord- According to Mrs Kording, the fact of hav- ing asked the tax consultants' Admissions ing worked part-time was not relevant for Committee of the Senator für Finanzen the purposes of calculating the period of ser- {Land Finance Minister) to issue a binding vice required by law for the exemption in opinion as to whether her work with the question to apply. The approach adopted by revenue administration on a part-time basis the administration amounted in effect to dis- met the requirements as to length of service crimination against part-time employees, — 15 years' service in the field of taxes contrary not only to the German Basic Law, administered by the Federal or Land tax but also to the relevant principles of Com- authorities — laid down by Paragraph 38(1) munity law. Women make up the great no. 4(a) of the Steuerberatungsgesetz (Law majority of the part-time workforce and the on Tax Consultancy) for exemption from the examination to qualify as a 'tax consultant'. 6

'Is there an infringement, in the form of indi- rect discrimination against women, of Article 3(1) of Directive 76/207/EEC of 9 February Ill — Analysis 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working condi- tions, or of other Community legislation, where, under domestic legislation (Paragraph 38(1), no. 4(a), second subparagraph, in con- junction with Paragraph 36(3) of the Steuer- beratungsgesetz, the 15-year minimum 18. Clearly, the issues raised in these refer- period of employment as a case officer in the ences for a preliminary ruling are substan- executive grade of the revenue administra- tially similar. The central question is whether tion, which is required for exemption from the national legislation distinguishing the tax advisers' examination, is proportion- between full-time and part-time employees ately extended in the case of part-time for the purposes of calculating length of ser- employment involving working hours of no vice — thereby affecting women to a greater less than one-half of the normal working extent than men — contravenes the principle hours, and where, of the 119 part-time of equal treatment for men and women as defined and further refined by Community law. 9 8 — Mrs Kording submitted in support of her arguments that the reason for the legislative amendment by which in 1972 the period was extended from 5 to 15 years was to prevent an 'exodus' of public servants to the private sector. Thus, the 9 — O n that point, the case calls for the Court to assess the com- legislation makes no provision for any evaluation of the suit- patibility with Article 119 of national rules (not merely con- ability of part-time employees to obtain exemption from the duct of private employers or collective agreements), as in public examination. Case 171/88 Rinner-Kühn [1989] ECR 2743.

10 — In the circumstances examined in Nimz, the part-time "... both Directive 76/207 and Directive employee was penalized by the quantification criteria used by the administration. For the purposes of access to a 75/117 apply to employment in the public higher salary grade, the length of service of employees who service. Like Article 119 of the EEC Treaty, worked between half and three-quarters of normal working hours counted as half only. By contrast, in the present case those directives are of general application, a the questions attach no importance to the fact that part- time work for less than half normal working hours is not taken into consideration for the purposes of determining length of service (the relevance of which is mostly confined to special circumstances, such as where a public servant is involved in political activities). 11 — Case 43/75 De/renne [1976] ECR 455.

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GERSTER v FREISTAAT BAYERN

factor which is inherent in the very nature of question, whether — since the above provi- the principle which they lay down. New sion of national law specifically concerns cases of discrimination may not be created access to employment broadly construed, by exempting certain groups from the provi- including eligibility for promotion — it sions intended to guarantee equal treatment should instead be appraised by reference to of men and women in working life as a Directive 76/207. whole.' I2

23. Thus the case-law offers clear guidance, 25. Before we address the substantive issues indicating that the answer to the first ques- raised here, it is useful to recapitulate the tion should be — in agreement, moreover, promotion procedure adopted by the Land with the Verwaltungsgericht's own views administration in implementation of direc- and with the observations submitted by all tives issued by the Bavarian Finance Minis- the parties participating in the proceedings try. — that Article 119 also covers employment relations governed by public law.

29. Should such a system be appraised, for present purposes, in the light of the directive 27. It is the administration's practice to draw on pay or the directive on access to employ- up a formal list of those eligible for promo- ment? tion. The officials concerned are listed in the same order as the dates on which, respec- tively, they became eligible for promotion in theory. When a post falls vacant, the position is offered to the employee at the top of the list, who may or may not accept it. If he accepts, his name is removed from the list and his own post taken by the candidate immediately below him. If, however, he 30. I propose the second alternative. The decides not to accept, the candidate in sec- LBV only affects pay indirectly. When an ond place is offered the vacant post, and so employee is placed on the promotions list, on, until that post is finally accepted. his progression to a higher grade cannot be classed as a right, but as a mere expectation. Actual promotion, however, depends on various factors, including, first, the availabil- ity of a post in a higher grade and, secondly, the maintenance of the employee's position on the promotions list even when this is 28. The problem before the Court has come reshuffled by applying the criteria for about because, for the purposes of determin- 'mobility based on performance', laid down ing the date on which certain part-time by the LBV itself. ,3 I therefore agree with employees qualify for promotion in theory the defendant administration — and with the under the LBV, the length of time for which observations made by the Irish Government they have been employed is not treated as and the Commission — that here, by con- equivalent to a period of full-time employ- trast with the rules examined in Nimz, there ment. In the case of those who have worked between half and two-thirds of normal working hours, their length of service is reckoned as equivalent to two-thirds of nor- 13 — As the defendant administration explains, it is always pos- sible for the employee to move up (and by the same token, mal hours over the same period. Their 'mini- to move down) the promotions list following a new perfor- mum qualifying period' will be longer than mance rating (every three years). A different rating means a new calculation, which may affect the employee's position that of many other employees who have on the list.

31. I now turn to the purpose of the provi- sion at issue, which seeks to regulate the 32. Using the established case-law of the weight to be attributed to length of service in Court for guidance, let us therefore examine the procedure for access to higher grades. whether the LBV is consistent with the prin- Directive 76/207 is thus the proper yardstick ciples of Community law on equal treat- against which to check whether the LBV dis- ment. criminated against women. Directive 76/207 gives clear directions in that regard. Accord- ing to Article 1(1), its purpose is 'to put into effect in the Member States the principle of equal treatment for men and women as regards access to employment, including pro- motion' (emphasis added). Article 2(1) states Cases of discrimination are identified by means of a dual test. The first step is to 14 — See Caie 149/77 Defrenne III [1978] ECR 1365, paragraph ascertain whether there is unequal treatment 20, but see also paragraphs 21 to 23. and, if so, whether the discrimination is

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OPINION OF MR LA PERGOLA — CASES C-l/95 AND C-100/95

direct or indirect; the second is to check down rules -which apply to part-time whether or not such discrimination may be employees as such, irrespective of whether objectively justified on the basis of factors they happen to be men or women. unrelated to sex. 15

15 — Case 170/84 Bilka [1986] ECR 1607, paragraph 29; Case 96/80 Jenkins [1981] ECR 911, paragraph 13. 17 — See p. 4 of the defendant administration's observations and 16 — Bilka, cited above (footnote 15), paragraph 36. p. 15 of the order for reference.

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as indirect discrimination, contrary to the value is attributed, the elimination of all dis- principles laid down in Directive 76/207 crimination on grounds of sex with regard to regarding access to promotion. all aspects and conditions of remuneration'.

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O P I N I O N O F MR LA P E R G O L A — CASES C-1/95 A N D C-100/95

work full-time, if they are to acquire the job market. It is impossible to remedy this professional skills and aptitude necessary for situation of 'impaired equality' — also in the duties at a higher level. light of the Court's decision in Kalanke — by adopting measures to ensure the equal treatment of men and women in employ- ment which target the 'points of arrival'. 21 Thus the rule that pay must reflect the pro- portion of hours worked turns out to be inimical to sexual equality when viewed in That is not the only difference: in my view the context of access to employment, which there is a second, even more significant dif- is the issue now before the Court. In other ference between the two cases. As I see it, words, where employees perform the same the notion of access to employment is quite duties, their pay can vary according to the different from that of pay for work per- hours worked without infringing, even indi- formed, in the context of which it may well rectly, the principle of equal treatment. In be appropriate to distinguish between full- this case, however, the question raised is how time and part-time employment. Access to to ensure that men and women can gain employment falls within the objectives of access to employment in conditions of sub- Directive 76/207, which is clearly based on stantive equality. That question takes prece- the principle of equal opportunity; in cases dence over the issue of how, and how much, involving the respective treatment of men men and women are paid, after they have and women, compliance with that principle secured employment. What is more, it is is ensured only when the conditions applied quite independent of the question whether it to women employees are substantively equal is justifiable to calculate pay on a pro rata to conditions for men. Accordingly, the vital basis, distinguishing between full-time and stage at which equality counts is the starting part-time work. point from which a career develops, compen- sating for the disadvantage which women alone continue to face, by removing the practical obstacles to equal opportunity in the field of employment. 20

43. That is entirely a matter for the national employees on an equal footing with those courts. It is for them to establish whether who work full-time. In promotion decisions and in what measure the reasons adduced by taken under the provisions at issue here, the employer — in this case, the Bavarian importance is attached not only to the con administration — may be regarded as objec stitutionally sanctioned criterion of perfor 22 tively justified. However, this does not mance but also to length of service.

That time- order to justify discriminatory conduct, mea related quantification is considered together suring that conduct against the level of with quality of performance as a necessary objectivity required in the circumstances. 2 3 element in the evaluation to be made; it is a In this case, that would not mean, as the crucial factor in the competent authority's United Kingdom Government maintained at decision whether to promote an employee the hearing, that the Court is 'yielding to the and thus affects the development of that per temptation' of evaluating the objectivity of son's career. the criterion adopted by the domestic legis lature. 2 4 The Community judicature cannot take the place of the national court in inves tigations falling within the latter's jurisdic tion, but it must provide that court with all the information which may assist it in set tling, in full compliance with Community law, the dispute giving rise to the request for a preliminary ruling.

The LBV was amended, as istration with the means necessary for the noted above, in 1995 so as to place part-time management of staff careers. That require ment — which is common, for that matter, to all administrative bodies — entails as a 22 — See Jenkins, cited above (footnote 15), paragraph 13, and corollary that, since part-time employees Bāka, cited above (footnote 15), paragraph 36. handle fewer cases, they must prove them 23 — See the judgments in Rinner-Kiihn, cited above (footnote 9), and Nimz, cited above (footnote 4); aiso points 10 and selves over a longer time-span. This is essen

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OPINION OF MR LA PERGOLA — CASES C-l/95 AND C-100/95

48. The German system recently made clear which of the above options it endorses. By the 1995 amendment to the LBV, part-time employment was equated with full-time In the case before the Court, the approach employment so far as concerns the assess- taken has been embodied in certain provi- ment of employees in the promotion pro- cedure. That amendment obviously reflects an attempt to achieve equal treatment for men and women in professional life. During 25 — See the judgment in Nimz, cited above (footnote 4), para- graph 13. the proceedings before the Verwaltungsge-

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GERSTER v FREISTAAT BAYERN

I would go as far as to say that this is a feature of our shared constitutional heri- tage, recognized in the Treaty as one of the guarantees afforded to citizens, not only by 49. It ought to be clear from the foregoing individual States, but also as part of the observations that the defendant administra- European venture. tion's argument does not amount to a rea- sonable justification of the LBV. As I have explained, the idea that full-time employees acquire the professional skills and experience required for promotion before those who work part-time is an assumption, the validity of which the national court must establish on a case-by-case basis. 27 Indeed there is no reason why, if both are impartially assessed, a part-time employee may not be more gifted and capable of better performance than a colleague who works full-time.

. . it would be nec- described as merely indirect. The assessment essary to take into consideration the nature of the post in question — experience is not as decisive a criterion for the of merit independently of the hours worked post of maintenance worker as it is for that of the head of an administrative department — and that in such matters it is the legal basis for evaluating staff and is not possible to accept a general and abstract rule' (point applies to men and women alike. In practice, 15). In that way, the Advocate General clarified the rela- tionship between the circumstances in Nimz and the Court's findings in Danfoss (Case 109/88 [1989] ECR 3199, iaragraph 24). It is for the national court to verify, in the

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O P I N I O N O F MR LA P E R G O L A — CASES C - l / 9 5 A N D C-100/95

hand with length of service, and ... enables higher grade can give rise to discrimination the worker in principle to improve perfor- against a part-time employee. Hence the mance of the tasks allotted to him' depends re-emergence of unjustified discrimination, on the 'circumstances of a particular case' which is bound ultimately to affect •working and, in particular, 'on the relationship women. between the nature of the work performed and the experience gained from the perfor- mance of that work upon completion of a certain number of working hours'. 2S

B — Case C-100/95

28 — Sec the judgment in Nimz, cited above (footnote 4), para- graph 14. Similarly, in Rinner-Kühn (cited above in foot- note 9) the Court found another criterion to be inadequate because it was not based on objective standards. In that case, the German Government contended that the conferral ex lege of entitlement to pay from the employer in cases of sickness solely on workers whose contracts exceeded a given number of hours per week or per month was justified by the fact that workers outside that category 'were not as 52. The domestic rules, as interpreted by the integrated in, or as dependent on, the undertaking employ- ing them as other workers'. The Court stated in response Admissions Committee and as subsequently that 'those considerations, in so far as they are only gener- amended, provide that for the purposes of alizations about certain categories of workers, do not enable criteria which are both objective and unrelated to exemption from the qualifying examination any discrimination on grounds of sex to be identified' (paragraphs 13 and 14). for tax advisers, part-time employees must 29 — Sec the applicant's observations (not contested by the complete a period of service which is pro- defendant administration), according to which, as from her portionally longer than that prescribed for last promotion on 1 January 1984, Mrs Gerster carried out duties linked to a post in Level A 9 + Z — that is t o say, in full-time employees. Therein lies the unequal the same category as the post for which she applied. Sec also the defendant's observations, p. 2. treatment between the two categories.

As in the previous case, therefore, the ques- tion here is whether or not such unequal treatment, which indirectly places women at a disadvantage, may be justified on objective grounds. 56. To sum up: the unequal treatment stems from the use of a criterion for assessment which is unjustified because it is not objec- tive. An objective approach would instead have involved verifying (again, by means of appropriate internal methods of selection and testing) whether part-time employees would also be capable of working as tax advisers. The only apparent justification for 54. According to the tax consultants' the rule employed is the assumption that a Admissions Committee, the rules in issue are person who works full-time develops skills justified because part-time employees pre- and abilities which are proportionally supe- sumably take longer than those who work rior to those of the part-time employee. The full-time to acquire the experience required drawback is that an assumption of that for exemption from the examination in ques- nature may prove true in some cases but not tion. That criterion is not materially different in others, whereas here it has been accepted from the one analysed above in Case C-l/95. as a rule to be applied every time the ques- It is not an objective criterion, nor is it logi- tion arises of exempting an employee from cal or consistent with the fundamental prin- the examination in question. 30 The practical ciple of equal access to employment. In this effect of the rule is to discriminate against case, access has been facilitated by allowing exemptions from the qualifying examination. However, that facility should have been — but was not — regulated in such a way that 30 — I have in mind, by way of a simple example, the case of a full-time employee who in the course of his work investi- no unjustified restrictions adversely affected, gates cases relating solely to one of the matters for which by comparison with other employees, a cat- the revenue administration is responsible and, vice versa, the case of a part-time employee whose work is divided on egory in which women greatly outnumber a rota basis between the various departments. Obviously, the employee in the latter case will have experience which is men. wider (although, admittedly, shallower) than the former.

(2) Section 13(2), second sentence, of the Bavarian regulations on career structure, which provides that periods of employment during which working hours are less than two-thirds of normal working hours are only partially to be taken into account for the purposes of calculating length of service, does not fall within the scope of 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) Articles 2(1) and 3(1) of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and work- ing conditions (OJ 1976 L 39, p. 40) must be interpreted as precluding national legislation which does not take into account, or does not fully take into account, length of service for promotion purposes in the case of part-time offi- cials whose working hours are less than two-thirds of normal working hours, if considerably fewer men than women work part-time, save where that

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GERSTER v FREISTAAT BAYERN

legislation is shown to be based on objective criteria unrelated to discrimi- nation on grounds of sex, having regard in particular to the relationship between the nature of the duties performed and the professional experience gained.

Case C-100/95