C-249/97

GRUBER V SILHOUETTE INTERNATIONAL SCHMIED

OPINION OF ADVOCATE GENERAL LÉGER delivered on 23 February 1999 *

1. By the questions referred to the Court required to ensure and maintain 'the appli- for preliminary ruling, the Landesgericht cation of the principle that men and women (Regional Court) Linz, Austria, essentially should receive equal pay for equal work'. seeks to ascertain whether the principle that men and women should receive equal pay, which is laid down in Article 119 of the EC Treaty, must be interpreted as precluding the application of a national rule pursuant to which workers who ter- minate their employment relationship in order to look after their children owing to a lack of child-care facilities for children under the age of three may receive no more than half of the compensation payable on 3. The second paragraph of that article termination of employment for the actual explains that 'pay' means 'the ordinary length of their service, while workers of the basic or minimum wage or salary and any opposite sex who terminate their employ- other consideration, whether in cash or in ment relationship for some other reason are kind, which the worker receives, directly or entitled to full compensation calculated on indirectly, in respect of his employment the basis of the entire period of their from his employer'. employment.

The relevant Community and national provisions

4. Article 119 of the Treaty, inasmuch as it Article 119 of the Treaty states a principle which '... forms part of the foundations of the Community', '... is directly applicable and may thus give rise to individual rights which the courts must 2. Pursuant to the first paragraph of Arti- protect'. 1 cle 119 of the Treaty, Member States are

7. The important reasons for which employees may terminate their employ- ment and receive the whole of the compen- sation referred to in Paragraph 23(1) AngG 3. the employer fails to fulfil his statutory are set out in the law and relate principally, obligation to protect the life, health though not exclusively, to situations where and moral welfare of his employee; the employer's attitude towards the employee or the employee's family makes it impossible for the employee to remain in his employment. The reasons are listed in Paragraph 26 AngG and Paragraph 82a of 4. the employer inflicts physical or moral the Gewerbeordnung (Industrial Code, injury on the employee or members of

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his family or seriously damages their other important terms of the contract; reputations, or refuses to protect the employee against such conduct on the part of one of the employer's colleagues or a member of his family.'

(e) the employer is unable or unwilling to pay the worker's wages.'

9. Paragraph 82a GewO provides that:

her child may, on certain conditions, claim payable to Workers on Termination of their compensation. Thus, under Paragraph Employment), Paragraphs 23 and 23a 23a(3) AngG, female employees who have AngG are applicable to workers. been employed for an unbroken period of five years are entitled to half the compen- sation payable under Paragraph 23(1) — albeit only up to a certain ceiling — if they give notice, after a live birth, within the period specified in Paragraph 5(1) of the Mutterschutzgesetz (Law on Maternity Benefits, hereinafter 'MSchG'). If the employee takes parental leave under the Facts and procedure MSchG, notice must be given no later than three months before the end of the period of that leave.

16. Mrs Gruber was employed as a worker by Silhouette International Schmied GmbH & Co. KG (hereinafter 'Silhouette') from 23 June 1986 to 13 December 1995.

Discussion

20. Considering that the determination of the case before it depends on the interpre- tation of that provision of Community law, the Landesgericht Linz referred the follow- ing questions to the Court for a preliminary Admissibility of the questions ruling:

21. Silhouette contends that the questions should be declared inadmissible. It argues that they are hypothetical in that, contrary '1. Is it compatible with Article 119 of the to the statements of the national court and EC Treaty that, owing to lack of child- Mrs Gruber, the plaintiff in the main care facilities, predominantly women proceedings was not obliged to resign, have to terminate their employment in since she could have taken a further year's order to look after their children and parental leave. She could not therefore rely these women, despite fulfilment of on the provisions of Paragraph 23(1) additional conditions (longer service), AngG.

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22. Mrs Gruber has admitted to the Court for in Paragraph 23a(3) AngG. The Court that she could indeed have taken a further cannot therefore substitute its judgment for year's leave, but she claims that the pro- the judgment of the national court in blem raised by the national court would in assessing Mrs Gruber's situation. any case have arisen when that leave came to an end.

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entitlement to compensation calculated on sation at all on terminating their employ- the basis of the entire period of employ- ment for family reasons, since looking after ment. a child cannot be regarded as an important reason conferring entitlement to the com- pensation provided for under Paragraph 23(1) AngG. They therefore contend that the provision is a special measure for the benefit of workers who want to look after their children. 27. Mrs Gruber claims that she has suf- fered indirect discrimination in respect of pay, compared with her male colleagues. Although obliged to resign for family reasons (in order to look after their chil- dren, a task carried out predominantly by women) female employees are awarded under Paragraph 23a(3) AngG only half of the compensation payable for the rele- vant periods or less (no more than three 29. In the light of the information supplied months' wages) and the employment rela- to the Court, there is little doubt that the tionship must have lasted at least five years. situation in which Mrs Gruber finds herself On the other hand, male employees who does indeed fall within the material and are obliged to resign for some other reason personal scope of Article 119 of the Treaty. are entitled to compensation calculated on the basis of the entire period of employ- ment, in the case of an unbroken period of three years' service, and the compensation is payable on the occurrence of any of the events conferring entitlement within the meaning of Paragraphs 23(7) and 26 AngG.

32. There is also little doubt — and it is 35. In the first place, therefore, a national common ground between the parties — provision such as Paragraph 23a(3) AngG that the national legislation at issue cannot can be discriminatory only if gives rise to a be regarded as a measure that discriminates disadvantage. directly against female employees. Indeed, as we have seen, 8it is intended to apply without distinction to female and male employees in the same circumstances. Sex is consequently not the ostensible reason for the differences in the amount of compensa- tion granted. 36. I shall consider first whether the situa- tion experienced by Mrs Gruber is to be regarded as a discriminatory situation which, as we know, involves the applica- tion of different rules to comparable situa- tions or the application of the same rule to 33. It must therefore be determined whe- different situations. 10 In principle, it is for ther, as Mrs Gruber maintains, a provision the national court to satisfy itself that the such as Paragraph 23a(3) AngG constitutes situations of the groups to be compared are

7 —See, in particular, Case C-262/88 Barber [1990] ECR 9 — Case C-444/93 Megner and Scheffel [1995] ECR I-4741, I-1889, paragraph 13 (my emphasis) or Case C-33/89 paragraph 24 (my emphasis). Kowalska [1990] ECR I-2591, paragraphs 10 and 11. 10 — See, in particular, Case C-342/93 Gillespie and Others 8 — Paragraph 23a(3) and (4) AngG. [1996] ECR I-475, paragraph 16.

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in fact identical, before considering whe- compensation on termination of employ- ther or not there is discrimination. ment are being given preferential treat- ment.

38. They also consider that the first group is placed at a disadvantage compared with the second, inasmuch as the first receives 41. In the light of the facts supplied by the only half the compensation paid to the national court, it is apparent that Mrs second on termination of employment and Gruber's complaint is that she has not is subject in addition to stricter conditions, received compensation on termination of including the completion of an unbroken employment calculated on the basis of the period of five years' service as against only entire period of her employment. Thus, the three years for the second group. purpose of the action is the payment of compensation following resignation. The relevant group of workers is therefore workers who resign. This first aspect of the appropriate parameter for purposes of comparison is accepted by all of the parties in the case. 39. Silhouette and the Austrian Govern- ment consider that the comparison should be with the group consisting of workers who resign without any important reason or workers who terminate the employment relationship of their own free will for 42. They are not, however, in agreement on personal reasons. These groups receive no the second aspect, namely the cause of the compensation and it is consequently clear that, contrary to Mrs Gruber's assertions, female employees who receive half the 11 — See, by analogy, Levez, cited above, paragraph 41.

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43. It is in any event for the national court 45. I would have taken an entirely different to rule on the matters of fact submitted to it view had it not been for the particular for assessment. Thus, according to that circumstances described in the order for court, Mrs Gruber did not choose to resign reference, in other words if the employee of her own free will for personal reasons, had terminated her employment relation- she was obliged to do so for an overriding ship of her own free will and if she had reason (to ensure the health and safety of been able to arrange for her children to be children under the age of three), which was looked after. Article 119 of the Treaty does beyond her control (no other arrangement not require Member States to provide for was available for looking after her chil- workers to be paid if they take leave to look dren). Her situation must therefore be after their children, nor does it preclude compared with that of workers forced to such provision. In the present case, how- resign for similar reasons. It is clear from ever, the issue is whether it is compatible the account of the national legislation given with Article 119 of the Treaty to pay two by the national court that family circum- groups of workers differently when both stances or health constitute reasons for are placed in circumstances such that it is resigning, irrespective of the wishes of not reasonable to require them to continue employees or beyond their control, and their employment relationship. that they cannot in those circumstances be held to have resigned of their own free will and consequently not to be entitled to 12 — See Paragraph 26 AngG and Paragraph 33(4) of the receive compensation on termination of Landarbeitsgesetz.

47. A worker such as Mrs Gruber is clearly placed at a disadvantage by the fact that she receives only half the compensation on termination of employment to which other employees are entitled when they resign on the ground that there would be a risk to the physical health or moral welfare of them- 50. In the second place, as we have seen, selves or their families if they were to not to pay workers the same when they are continue the employment relationship, as similarly placed in circumstances such that provided for in Paragraph 26 AngG or it is not reasonable to require them to Paragraph 33(4) of the Landarbeitsgesetz. continue their employment relationship would constitute discriminatory treatment prohibited under Article 119 of the Treaty only if the group of workers placed at a disadvantage consisted mainly of women. It must therefore be determined whether that 48. Moreover, it is apparent that the com- was the case. pensation on termination of employment granted to employees who are obliged to resign to look after their children owing to a lack of child-care facilities is subject to the fulfilment of additional conditions over 51. The Court has consistently held 13 that and above those governing the payment of in principle it is for the national court to compensation on termination of employ- examine the statistics in this connection. ment to employees who are obliged to resign for other overriding reasons. Thus, the employment relationship must have lasted more than five years. The disadvan- tage identified in this case is twofold.

54. According to the statistics supplied by the national court, 20 the situation mainly 57. The Court has consistently held 22 that 14 — Enderby, cited above. it is for the national court, 'which has sole 15 — Case 109/88 Danfoss [1989] ECR 3199, paragraph 16. jurisdiction to assess the facts and interpret 16 — Enderby, cited above, paragraph 17. the national legislation', 23 to determine 17 — Ibid. 18 —Case C-343/92 Roks and Others [1994] ECR 1-571, whether the reasons advanced for the paragraph 33. provision at issue clear it of any suspicion 19 — Case 171/88 Rinner-Kühn [1989] ECR 2743, paragraph 16. 20 — According to the national court, in 1994 only 0.84% of those drawing parental leave pay were men and only 30% 21 — See, for example, Megner and Scheffel, cited above, of the female workers affected could resume work immediately after the end of their parental leave. These paragraph 24 statistics submitted by the national court have not been 22 — See, for example, Rinner-Kühn, cited above. contested. 23 — Ibid., paragraph 15.

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59. Conversely, the Court has occasionally held that the reasons advanced by the framers of discriminatory measures were 58. On the basis of that case-law, the Court not justified by objective factors unrelated has thus allowed that reasons of employ- to any idea of discrimination. ment policy and reasons of social policy may both constitute objectively justified factors clearing disputed national measures of any suspicion of discrimination. Thus, in its judgment in Lewark, 27 the Court held that the fact that full-time workers were not paid in the same way as part-time workers because only full-time Thus, in its judgment in Bilka, cited above, workers were paid for the time spent on the Court held that the exclusion of part- training courses for members of the staff time workers from an occupational pension council was not justified by objective scheme corresponded to a real need of factors unrelated to any discrimination on employment policy that was not prohibited grounds of sex. Similarly, in its judgment in under Article 119 of the Treaty. The mea- Rinner-Kühn, cited above, it held that the sure was designed to encourage employees provision, under which workers whose to work full-time and particularly on Sun- period of work amounted to less than 10 hours a week were excluded from the

24 — See, for example, Case 170/84 Bilka [1986] ECR 1607, paragraph 37. 26 — Paragraph 30. 25 — Case C-278/93 Freers and Speckmann [1996] ECR I-1165, 27 — Case C-457/93 Lewark [1996] ECR I-243, paragraphs 26 paragraph 24. to 30.

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61. Silhouette adds that, since the compen- sation on termination of employment has to be paid by employers, the budgetary implications of a decision requiring them to pay full compensation to female workers in circumstances such as those described by the national court would place a financial burden on employers that they would find 60. The Austrian Government asserts that difficult to bear. the purpose of the provision at issue is to enable workers who wish to terminate their employment contract in order to look after their children to receive some compensa- tion. The measure is thus based on reasons of social policy. It is true, as we have seen, that workers resigning for purely personal reasons such as a wish to look after their 62. The Court has already formally refused children are not afforded any special pro- to recognize that budgetary considerations tection under Community law. However, as may constitute an objective justification for the national court has explained at length, discriminating between male and female the facts in the present case are quite workers in respect of pay. 28 different. But the Austrian Government offers no reason why the argument that the female worker is forced to resign because there is absolutely no other arrangement available for looking after her children cannot be considered by the national court as an important reason conferring entitlement to the full compen- 63. These factors in the case are not there- sation on termination of employment paid fore such as to constitute objective justifi- to male workers who are not forced to cations for the alleged discrimination. resign for that reason, when other family circumstances are regarded as a reason 28 — See, for example, Roks and Others, cited above, para- conferring entitlement to compensation graphs 35 and 36.

67. However, it is clear from the docu- ments in the case submitted to the Court 65. The second question is a refinement on for consideration that the national court, in the first. The national court asks the Court the context of the main action before it, is whether the answer to the first question is not asking the Court to assess whether the affected by the nature of child-care measures adopted in Austria to promote arrangements in Austria. In other words, equal opportunity for men and women must the question whether the child-care facilities for young children are public or 29 — Council Directive of 9 February 1976 on the implementa- private be taken into account in determin- tion of the principle of equal treatment for men and ing whether or not a worker placed in a women as regards access to employment, vocational training and promotion, and working conditions situation comparable to that of Mrs Gruber (OJ 1976 L 39, p.40).

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comply with the letter and spirit of those with the interpretation of the Treaty. The provisions. 30 considerations which may have led a national court or tribunal to its choice of questions as well as the relevance which it attributes to such questions in the context of a case before it are excluded from review by the Court of Justice'. 68. The purpose of the main proceedings is purely and simply to establish whether or not there is a discriminatory situation prohibited under Article 119 of the Treaty in order to determine the amount of the compensation on termination of employ- ment payable to Mrs Gruber. 31

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paid employment and to agreements 73. Thus, in the context of the main between individuals. 36 proceedings, whether the cause of the lack of child-care facilities for children under the age of three is private or public is irrelevant for the purpose of determining whether Article 1.19 of the Treaty has been 72. It follows from that case-law that the respected. absolute nature of the protection conferred by that provision on individuals who invoke it cannot be limited by considera- tions relating to the cause of the discrimi- natory situation. Consequently, all that is required to establish that there has been an. infringement of Article 119 of the Treaty is to show that a male or female worker has been placed in a discriminatory situation in 74. The answer to the second question respect of pay. In other words, in identify- must therefore be that the fact that in ing a discriminatory situation, it is irrele- Austria child-care facilities for young chil- vant whether the cause of that situation is dren are generally State-run or State-aided private or public. does not affect the answer given above.

36 — See Article 4 of 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 (OJ 1975 L 45, p.19), whicn provides that 'Member States shall take the necessary measures to ensure that provisions appearing in collective agreements, wage scales, wage agreements or individual contracts of employment which are contrary to the principle of equal pay snail be, or may be, declared null and void or may be amended'. See also, in particular, Case C-360/90 Botel [1992] ECR I-3589 and Lewark, Freers and Speckmann and Barber, cited above, paragraph 32 of which points out that Article 119 prohibits any discrimi- nation with regard to pay as between men and women, whatever the system which gives rise to such inequality.

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