C-281/97

KRÜGER V KREISKRANKENHAUS EBERSBERG

OPINION OF ADVOCATE GENERAL LÉGER delivered on 3 December 1998 *

1. The question referred by the Arbeitsger- Facts and procedure icht München (Labour Court, Munich), once again concerns the institution of 'minor' employment, found in the Federal Republic of Germany, and the problem of the compatibility of the treatment accor- 3. Before the birth of her child in spring ded, under the relevant national provisions 1995, Mrs Krüger, the plaintiff in the main to this type of employment — exercised for proceedings, was employed full-time for a small number of hours a week, for pay nearly five years as a nurse at the Krei- that does not exceed a certain threshold — skrankenhaus (district hospital) Ebersberg, with the Community provisions on equal the defendant in the main proceedings. As a treatment for men and women. result of this employment relationship she was subject to the Bundesangestelltentar- ifvertrag of 1961 (Collective agreement for public sector employees, hereinafter 'the BAT').

4. In accordance with the Bundeserzie- hungsgeldgesetz (Federal laws on child-care allowance, hereinafter 'the BErzGG'), Mrs Krüger obtained child-car leave for a period 2. The cases which gave rise to the judg- of almost three years and a child-care ments of 14 December 1995 in Nolte1 and allowance, reserved — in accordance with Megner and Scheffel2 led the Court to Paragraph 1 of the BErzGG — for persons consider the exclusion of minor employ- not exercising a full-time paid activity ment from social insurance schemes in within the meaning of the said law (i.e. relation to the principle of equal treatment not employed for more than 19 hours a for men and women in matters of social week). security; the present reference for a pre- liminary ruling requires it to rule on the same principle, this time in relation to pay and working conditions.

6. After working for several months in minor employment, the plaintiff in the main proceedings brought an action before the Arbeitsgericht München on 14 June 1996, to obtain payment of the special annual allowance. This is a bonus, paid at Christmas and equivalent to one month's salary, payable — pursuant to the applic- able collective agreement the Tarifvertrag über eine Zuwendung für Angestellten of 'Is a rule of national law — in this case Paragraph 3n of the BAT in conjunction 12 October 1973 (hereinafter referred to as with the Zuwendungs-TV of 12 October 'the ZTV') — to persons whose employ- 1993 5— compatible with Directive ment relationship falls within the scope of 76/207/EEC on the implementation of the the BAT. principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, and with Article 119 of the EC Treaty, if it provides that employ- ees who exercise an activity which is not 7. The defendant in the main proceedings subject to compulsory social insurance refused to grant the disputed bonus on the during child-care leave, by contrast with ground that, under Paragraph 3n of the employees liable to compulsory social BAT, persons in minor employment within insurance, do not receive an annual special the meaning of Paragraph 8 of the SGB IV, allowance under the relevant collective are excluded from the scope of the said agreement? Is that rule compatible with collective agreement. The defendant there- the above provisions in particular if fore concluded that, as she was in minor employees who are on child-care leave but employment, the plaintiff was outside the are not working nevertheless receive the scope of the BAT and was consequently not special allowance under the collective entitled to the annual bonus. agreement in the first year?'

13. Before setting out the considerations that have led me to this conclusion, I should like to first clarify several points. '1.... to put into effect in the Member States the principle of equal treatment for men and women as regards access to employ- ment, including promotion, and to voca- tional training and as regards working conditions...'. 14. The German court refers, at least implicitly in the wording of its question, and explicitly in the considerations of its order for reference, 8 to two kinds of national provisions, which, when applied 11. For its part, Article 119 of the Treaty requires the Member States to ensure and 7 — Settled case-law since Case C-43/75 Defrenne v Sabena maintain the application of the principle (Defrenne II) [1976] ECR 455, paragraph 12. See for example Case C-243/95 Hill and Stapleton v Revenue Commissioners and Department of Finance [1998] ECR I-3739, paragraph 18. 8 — See the wording of the relevant passage of the referring 6 — OJ 1976 L 39, p. 40. order, reproduced in point 8 of the present Opinion.

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19. Pursuant to those provisions, the treat- ment of persons on child-care leave (a majority of whom, according to the infor- mation provided, are women) varies according to whether or not they are in minor employment. Thus those who were 16. Without entering into an assessment of previously employed full-time but opt not the national provisions, which is a matter to work during the period of leave, remain for the referring court alone, it is clear that entitled — pursuant to the combined pro- simply applying Paragraph 3n of the BAT visions of the ZTV and the BAT — to in conjunction with the ZTV suffices to receive the contested bonus during the first exclude persons in minor employment from year of child-care leave. Conversely, anyone receiving the contested special annual taking up minor employment during the bonus. The relevant provisions governing period of leave, ceases — pursuant to child-care leave and the child-care allow- Article 3n of the BAT in conjunction with ance, both of which the plaintiff inciden- the ZTV — to be entitled to receive the tally received, are absolutely immaterial in contested bonus. this connection. Moreover, according to the information provided, there seems to be no connection between the Christmas bonus and the child-care allowance. 20. Nevertheless, within this predomi- 9 — Point 2 of the defendant's observations and point 22 of nantly female group of persons on child- those of the Commission. care leave, there does not appear to be any

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24. In this connection, I am inclined to 21. It follows that the referring court's agree with the Commission 12 that the question should be understood as seeking reference to Directive 76/207 is of no to ascertain whether Article 119 of the relevance. Treaty and Directive 76/207 must be inter- preted as meaning that a national rule excluding persons in employment — clas- sified as minor employment — which involves a limited number of working hours and low pay, and is not subject to compul- 25. Let us recall, first that the purpose of sory social insurance, as opposed to those the Directive, as set out in Article 1, is 'to in employment that is subject to compul- put into effect in the Member States the sory social insurance, from entitlement to a principle of equal treatment for men and special annual bonus as provided for under women as regards access to employment, the relevant collective agreement, constitu- including promotion, and to vocational tes discrimination on grounds of sex, where training and as regards working condi- such provisions affect considerably more tions...'. However, it is not immediately women than men. 11 —See paragraphs 19 and 21, and paragraphs 18 and 20 respectively. 10 — Final paragraph of the order for reference. 12 — Point 35 of its observations.

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apparent that the contested provisions bear consideration, whether in cash or in kind, any relation to those factors. 13 which the worker receives, directly or indirectly, in respect of his employment from his employer'.

13 — In reality it would appear from the order for reference that 31. I therefore conclude that the question the mention of Directive 76/207 refers to an examination whether the principle of equal treatment of the BErzGG, which I have already rejected. 14 — Case C-342/93 Gillespie and Others ν Northern Health has been applied should in this case be and Social Services Boards and Others [1996] ECR I-475, examined only with reference to pay. paragraph 24. 15 — 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). 17 — Case C-262/88 Barber v Guardian Royal Exchange [1990] 16 — See for example the judgments in Gillespie and Hill and ECR 1-1889, paragraph 20. Stapleton, cited above, paragraphs 11 and 19 respectively. 18 — Gillespie, cited above, paragraph 12.

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32. Without further ado it can be stated at concern a significantly higher number of this stage of the deliberations that the joint persons from one sex than from the other application of the contested provisions — or, to be precise, 'far more women than Paragraph 3 n of the BAT and the ZTV — men' 21 because 90% of the persons does not give rise to unlawful direct affected by the combined provisions of discrimination: sex is not the criterion Paragraph 3 n BAT and the ZTV are alleged upon which application of the collective to be women. agreement — which would confer entitle- ment to the Christmas bonus — is being denied.

19 — Judgment in Hill and Stapleton, cited above, paragraph 24. 21 — Gerster and Kording cited above, paragraphs 30 and 16 See also, among recent judgments to the same effect those respectively. in, Megner and Scheffel, cited above, paragraph 24; Case 22 — It should however be noted, to be precise, that this figure C-1/95 Center v Freistaat Bayern [1997] ECR I - 5253, given by the Arbeitsgericht München refers, according to paragraph 30, and Case C-100/95 Kording v Senator für the order for reference, to persons receiving benefits under Finanzen [1997] ECR I - 5289, paragraph 20. the BErzGG (see point 8 of the present Opinion). In any 20 — See for example Case C-33/89 Kowalska v Freie und case, it is for the national court to verify the accuracy of Hansestadt Hamburg [1990] ECR I - 2591, paragraph 16, the figure given in so far as it relates to persons who were and Case C- 184/89 Nimz v Freie und Hansestadt Ham- denied the annual bonus on the ground that they were in burg [1991] ECR I - 297, paragraph 15. minor employment.

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do not receive a special bonus at Christmas, siderably more women than men, since the equivalent to one month's wages. If there is national legislature was reasonably entitled no other arrangement, with equivalent to consider that the legislation in question results, for those in minor employment — was necessary in order to achieve a social which, according to the information sub- policy aim unrelated to any discrimination mitted, does not seem to be the case — the on grounds of sex'. 23 relevant national provisions, in so far as they accord this bonus only to certain employees, are disadvantageous for the others.

40. It would be otherwise only if such apparent discrimination could be objec- tively justified. 43. Thus, according to the defendant in the main proceeding, the exclusion of persons in minor employment from the national social insurance scheme, which holds to be non-discriminatory, justifies the exclusion, 41. In this connection the defendant in the pursuant to Paragraph 3n of the BAT, of main proceedings invokes the judgment in these same persons from the contested Megner and Scheffel, cited above, in which bonus: in the defendant's view, the fact the Court held that 'national provisions that persons in minor employment are not under which employment regularly consist- required to pay social insurance contribu- ing of fewer than 15 hours a week and tions constitutes a legitimate criterion for regularly attracting remuneration of up to excluding them from the scope of the one-seventh of the monthly reference collective agreement. amount is excluded from compulsory insur- ance under the statutory sickness and old- age insurance schemes... do not constitute 23 — Paragraph 32, my emphasis. discrimination on grounds of sex, even 24 — Ibid., paragraph 26. where the relevant provisions affect con- 25 — Ibid., particularly paragraphs 27, 28 and 30.

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50. It must however be borne in mind that, 47. On the other hand, the judgment in as the Commission has pointed out, 2 7 such Megner and Scheffel, for example, drew an advantage in terms of pay does not attention to the interdependence that can suffice to eliminate the disadvantages, exist, within a contributory scheme, notably in the area of social insurance, between the contributions paid, on the one hand, and the benefits paid, on the other. In the eyes of certain governments — 26 — Ibid., paragraph 26. and the Court has not contradicted them on 27 — Point 55 et seq. of its observations.

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inherent in such a form of employment. category by waiving the obligation to pay Exemption from compulsory social insur- social insurance contributions or special ance does not, in the majority of cases, bonuses. It will also be recalled that, in the constitute a particular privilege.28 This same spirit, the Court held that a policy follows, moreover, from the judgments in intended to alleviate the constraints bur- Nolte and Megner and Scheffel, cited dening small businesses 'which play an above, since by proceeding directly to its essential role in economic development examination of the objective justifications and the creation of employment in the advanced the Court implicitly but undoubt- Community' might be justified by objective edly considered that such exemption con- reasons unrelated to the sex of employ- stituted a disadvantage. ees. 31

51. Even if such an argument cannot be 53. This is an argument to which the Court said to constitute an objective justification, was also particularly sympathetic in its I am none the less of the opinion — unlike judgments in Nolte and Megner and Schef- the Commission 29 — that the potentially fel. Although it is frequently observed that deterrent effect that rendering payment of the Court accepted a social policy argu- the annual bonus compulsory could have ment on that occasion, 32 it nonetheless on recruiting persons in minor employ- considered an employment policy objective ment, should be considered very particu- to be objectively devoid of any discrimina- larly. tion based on sex, and as such, to be such as to justify a prohibited difference of treatment.

policy or a policy to encourage employ- 57. Moreover, as agreed during the hear- ment in a more general sense, the social ing, to include persons in minor employ- partners who signed the collective agree- ment in the scope of the provisions of ment should wish to accord special treat- collective agreements confirming entitle- ment to persons in minor employment. The ment to the Christmas bonus, would radi- Court admitted as much in regard to such cally alter the very concept of this type of persons' social security cover in the judg- employment. In fact, were persons in minor ments cited above. There is no reason why employment to receive, at the end of the the same argument should not apply to pay. year, the equivalent of one month's pay, their pay would exceed the threshold below which they are exempt from the obligation to contribute to the German social insur- ance scheme. Thus the institution of minor employment — a constituent element of 56. I therefore consider that an employ- which is precisely its exemption from ment policy objective may constitute an affiliation to the social insurance scheme — objective justification without reference to would be called into question. It is for the any criterion based on sex, for excluding German Government alone to decide, in persons in minor employment from the the context of its employment policy, scope of the BAT and, as a result, from whether it is advisable to call that institu- receiving the contested annual bonus. tion into question in this way.

Conclusion

58. In the light of the foregoing considerations, I propose that the Court give the following answer to the question referred by the Arbeitsgericht München: