C-309/97

ANGESTELLTENBETRIEBSRAT DER WIENER GEBIETSKRANKENKASSE

OPINION OF ADVOCATE GENERAL COSMAS delivered on 19 January 1999 *

Summary

I — Introduction I - 2867

II — Legal context I - 2868

A — Community provisions I - 2868

C — The sixth question I - 2887

D — The second question I - 2892

E — The third, fourth and fifth questions I - 2896

F — The seventh question I - 2903

VI — Conclusion I - 2906

I — Introduction seven questions concerning the interpretation of Article 119 of the E C Treaty and C o u n c i l Directive 7 5 / 1 1 7 / E E C of 10 F e b r u a r y 1975 o n the a p p r o x i m a t i o n of the laws of the M e m b e r States relating to the application of the principle of equal p a y for m e n and w o - 1. I n this reference for a preliminary ruling men. 1 T h e questions referred to t h e C o u r t u n d e r Article 177 of the E C Treaty, the O b e r - mainly concern the interpretation of the c o n - landesgericht Wien (Austria) seeks replies t o cepts of 'equal w o r k ' and 'same j o b ' , and the identification of the g r o u p s to be c o m p a r e d

A — Community provisions

(b) that pay for work at time rates shall be the same for the same job.'

2. The first paragraph of Article 119 of the 4. Article 1 of Directive 75/117 reads as fol- Treaty provides: lows:

'The principle of equal pay for men and women outlined in Article 119 of the Treaty, hereinafter called "principle of equal pay", means, for the same work or for work to 'Each Member State shall during the first stage which equal value is attributed, the elimina- ensure and subsequently maintain the appli- tion of all discrimination on grounds of sex cation of the principle that men and women with regard to all aspects and conditions of should receive equal pay for equal work.' remuneration.

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For comparison, in 1995 the basic pay of down the conditions for practising as a psy- doctors in Salary Bracket B III was between chotherapist. 4 ATS 42 194 and ATS 73 457, depending on their length of service, whereas during the same period that of administrative employees in Salary Bracket F Iwas between ATS 24 796 and ATS 51 996, also depending on length of service.

The Ärztegesetz (Law on Medical Practice) 5 defines the activities of the medical profes- sion 6and lays down the requirements for Moreover, the working week of doctors practising as a doctor. 7 employed by the social insurance institution which is the defendant in the main proceed- ings is 36 hours, whereas that of other employees is 40 hours.

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gists 9 and lays down the requirements for of the insurance funds. The out-patient clinics practising as a psychologist. 10 are also used by other social insurance organi- sations.

III — Facts

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13. The action was dismissed at first instance — the Health Fund employs a total of 248 on the ground that the 1979 Gleichbehand- doctors, of whom 135 are women; lungsgesetz (Law on Equal Treatment) does

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— in the Ambulatorium Mariahilf out-patient Community law and decided, by order of 5 clinic the Health Fund employs as psy- May 1997, to refer the following questions to chotherapists 6 psychologists, of whom 5 the Court: are women, and 6 doctors, of whom 1 is a woman;

— the total number of persons employed as psychotherapists by the social insurance institutions is 34, of whom 10 are doctors and 24 are graduate psychologists. Of the '(1) Do the terms "the same work" and "the 24 psychologists working as psychothera- same job" apply, for the purposes of pists, 18 are women whereas, of the doc- Article 119 of the EC Treaty or Direc- tors working as psychotherapists, only 2 tive 75/117/EEC, where the same tasks are women; are performed over a considerable length of time (several salary periods) by per- sons the basis of whose qualification to exercise their profession is different?

— for the whole of Austria on 9 April 1996 there were 1 425 men and 2 338 women registered as psychologists trained in psy- chotherapy. 11

(c) pay is governed definitively by man- datory collective agreements?

(5) Where the tasks under consideration which are the same in both groups are only some of the tasks covered by the (3) Where a collective agreement specifies, professional qualifications in question, in definitive rules relating to remunera- must account be taken of tion, different levels of pay for the same work or work of equal value depending on professional qualifications, must ref- erence be made, when selecting groups for comparison in determining whether a measure gives rise to discrimination, to

(a) all persons employed in the relevant context (undertakings, collective (a) the persons actually employed in the agreements — see Question 3) who undertaking, or have the professional qualifications in question (all specialist doctors and all psychologists), or

(b) the employees working in the field covered by the collective agreement, or

(b) all persons actually entitled to per- form the duties in question (e. g. (c) all those who are qualified to pursue doctors with a specialist qualifica- the occupation in question? tion in psychiatry), or

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17. It is also common ground that there is an 19. Finally, certain factual aspects of the actual difference in the pay of doctors and present case seem to call for additional obser- psychologists who are employed as psycho- vations. To establish the status of the two therapists by the Health Fund and that it is groups of workers concerned, it is necessary more than superficial. If the difference to ascertain the exact terms of the employ- observed were only superficial, it would be ment relationship of each group, the criteria unnecessary to examine the present case fur- according to which doctors are chosen to ther and neither the statistical data relating to work as psychotherapists, how that choice is the groups concerned nor the question of related to their specialisation, if any, and whether the difference in pay might be objec- whether, once chosen, they are employed only tively justified need be considered. 13 as psychotherapists or are assigned to other duties at the same time. It is also necessary to explain and establish, as the court of first instance in the main proceedings pointed out, why a body which represents the interests of all employees (the Staff Committee) should challenge an agreement concluded by other organisations representing the interests of the parties to the action.

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B — The first question equality, discrimination contrary to the prin- ciple of equality arises through the applica- tion of different rules to comparable situa- tions or the application of the same rule to different situations. 19 The principle of equal pay, which is a specific expression of the gen- 20. In the first question, the Oberlandesger- eral principle of non-discrimination, presup- icht Wien asks whether the fact that the same poses that the men and women to whom it duties are involved is sufficient for finding applies are in identical, 20 or at least similar, 21 that there is 'equal work' for the purpose of situations. Obviously, the element of 'same the first paragraph of Article 119 of the Treaty work' is a fundamental condition not only or 'the same job' for the purpose of subpara- for regarding two groups of workers as com- graph (b) of the third paragraph of the same parable and their respective situations as simi- article, even where those duties are carried lar, 22 but also for sex discrimination between out on the basis of different professional quali- those groups to exist. 23 For this reason, fur- fications, arising from different professional thermore, in accordance with the principle training, and where one of the groups of that the person alleging facts in support of a employees concerned is qualified, by virtue claim must adduce proof of such facts, it is of the professional qualification required, to essential for a person pleading such discrimi- perform other duties in a wider field. nation to prove that the work in question is the same. 24

19 — Case C-279/93 Schumacher [1995] ECR I-225, paragraph 30; 17 — According to Advocate General Trabucchi (sec his Opinion Case C-342/93 Gillespie and Others [1996] ECR I-475, in Case 43/75 Defrenne [1976] ECR 455, in particular paragraph 16, and Case C-100/95 Kording [1997] ECR p. 486), 'with regard to the definition of the concept of I-5289, paragraph 14. equal work", which is in any case partly described in the 20 — Case C-132/92 Roberts [1993] ECR I-5579, paragraph 17. third paragraph of Article 119 (which, in addition to using The actual wording of this judgment indicates that the work the term "same work" for work at piece rates, also refers to in question must be absolutely identical: However, the pay for work at time rates as "the same for the same job"), wording does not accord with the more general spirit of the there is no need to exaggerate its importance in applying the Court's case-law. On this point, sec paragraphs 22 and 23 of article. It has been rightly observed that Article 119 "does this Opinion. not try to determine when men and women arc doing the 21 — Case C-400/93 Royal Copenhagen [1995] ECR I-1275, para- same work, but only to ensure that the sex of the worker is in no way taken into account in decisions on pay. Whether graph 33. the work is the same or different is a question of. fact to be 22 — See the Opinion of Advocate General Lenz in Case 109/88 determined in every individual case in accordance with the Danfoss [1989] ECR 3199, paragraph 40, and the Royal responsibilities assigned to each person concerned and must Copenhagen judgment, cited in footnote 21, paragraphs 32 not be the subject of an a priori decision any more than and 33. there is an apriori decision that two men placea on the same 23 — Royal Copenhagen, cited in footnote 21, paragraph 40. rate of pay perform the same work" (Levi Sandri, in Com- 24 — Enderby, cited in footnote 16, paragraphs 13 to 19, and the mentano CEE, vol. IL p. 956).' Opinion of Advocate General Lenz in that case, paragraphs 18 — Sec the Opinion of Advocate General Lenz in Enderby (cited 15 to 39, and also his Opinion in Roberts, cited in footnote in footnote 16, paragraph 5). 20, paragraph 12 et seq.

25 — Directive 75/117 filled the gap in Article 119 in relation to Article 2(1) of Convention 100 of the International Labour Organization (1951) and Article 4, point 3, of the European Social Charter (Turin, 18 October 1961), both of which laid down the principle of equal treatment for work of equal value. 25. When, however, when is work 'equal 26 — See Case 96/80 Jenkins [1981] ECR 911, paragraph 22, and Case 192/85 Newstead [1987] ECR 4753, paragraph 20. work' or 'work of equal value' for the pur- 27 — See the Opinion of Advocate General Capotorti in Case 129/79 Maatrthys [1980] ECR 1275, to the effect that 'same pose of the first paragraph of Article 119 of work' in Article 119 'should be understood ... in such a the Treaty? manner as to include two jobs showing a high degree of similarity, even if there is not total identity between them' (point 4, in particular p. 1296). In any case, since the Treaty of Amsterdam (Article 1, point 22), Article 119 of the EEC Treaty now refers expressly to two concepts: '1. Each Member State shall ensure that the principle of equal pay for male 28 — The difference in skills may be so great that it gives rise to and female workers for equal work or work of equal value the question whether the job or the work is completely dif- is applied.' ferent: see paragraph 33 of this Opinion.

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A systematic construction of Article 119 of the Treaty would therefore require acceptance of the following principles. The words 'equal 'The same job' is therefore a specific form of work' in the first paragraph of that article the concept of 'equal work' in the first para- indicate any kind of work and refer to the graph of Article 119 of the Treaty in the con- nature and purpose of the jobs or duties text of work at time rates, and could be which are being compared. The same words defined in each case on the basis of an objec- used in indent (a) of the third paragraph refer tive formal classification of jobs in a service to work at piece rates and are based on a or an undertaking or a sector of activity. In comparison of the individual results of work. that case, therefore, the definition of 'equal O n the other hand, 'the same job' in indent work' must be based on objective criteria per- (b) means work at time rates and refers to the mitting a structural assessment of jobs and formal components of the work in question, must not depend on whether the financial that is to say, the conditions on which it is reward matches the individual result of the done. It follows from what I have said that work in question. Most of these criteria are there may be 'equal work', in the sense of the same duties, without there being 'the same job', because those duties are not carried out 29 — The consequences of this distinction, which the Court has not yet examined in detail, must be assessed in the light of the fact that there are also mixed systems. See also Royal Copenhagen (cited in footnote 21), which deals with this distinction. 31 — See paragraph 55 of this Opinion, concerning the relevance of the sector to the question whether there is equal work or 30 — His pay may include a fixed portion, but the main part is work of equal value. variable and is paid by reference to the number of articles produced. Thus his actual earnings arc determined, at least 32 — See paragraph 54 et seq. of this Opinion, concerning the in part, by his output, which is assessed on a wholly indi- second question referred, which raises the issue of the rel- vidual basis (see the Opinion of Advocate General Léger in evance of provisions in collective agreements in the assess- Royal Copenhagen, cited in footnote 21, paragraph 60). In ment of whether the work is the same or of equal value. the case of piece-work, therefore, a comparison of output 33 — On comparing managerial posts, see the Opinion of Advo- involves comparing the individual productivity of each cate General Lenz in Enderby, cited in footnote 16, para- worker. graph 10.

on the same conditions or are carried out by started from the principle, which was a workers with different skills. working hypothesis for the national court itself, that the workers concerned carried out equal work or work of equal value. A char- acteristic example of this is Enderby, 37 which, contrary to the argument of the Staff Com- mittee which is the appellant in the main pro- ceedings, did not rule on the question of the equal value of the work of speech therapists

29. The Macarthys judgment, 39 which is one of the rare judgments in which the Court directly defines its position on the criteria for 'equal work' or 'work of equal value', shows that 'equal work' is an entirely qualitative concept which is exclusively concerned with the nature of the work in question. This means that the only criterion for the existence 28. With regard to the criteria for 'equal of 'equal work' or 'work of equal value' is the work' or 'work of equal value — or, a for- tiori, higher value', 36 the guidance offered by actual activity of the workers.

12). To adopt a contrary interpretation would render the as Advocate General Léger indicated in his Opinion (para- principle of equal pay ineffective and nugatory (paragraph graphs 14 to 17). 10). 39 — Cited in footnote 27.

there is 'equal work' where identical or similar the position it adopted in Macarthys. The work is carried out in different jobs. 40 object and nature of the task in question appears to be a sufficient material criterion for determining whether two groups of workers perform the same work or work of equal value. 41 In addition, the conceptual dis- tinctions made by Article 119 of the Treaty have not hitherto been examined by the Court, 30. In the subsequent case-law the Court which has confined itself mainly to analysing does not appear to have modified essentially the term 'equal work' 42 in the context of the first paragraph of Article 119, and does not appear to attach importance to systematic analysis of the semantic difference between 40 — Macarthys, cited in footnote 27, paragraph 11.

national court. 41 — Case 237/85 Rummler [1986] ECR 2101. This judgment As to the question of jobs done at different places, the Court refers mainly to objective criteria for determining the exist- ruled in the same judgment that it was not possible to com- ence of discrimination in pay. The principle of equal pay to pare the work of a man and a woman in a very general which the judgment refers primarily requires objective framework, taking account of entire sectors of activity; com- account to be taken of the nature of the work.

10, 14, 15 and 16). As regards jobs done at different places, the Macarthys judg- 42 — Macarthys, cited in footnote 27, paragraph 9. ment (like the judgment in Case 69/80 Worringham and 43 — For example, in his Opinion in Jenkins (cited in footnote Humphreys [1981] ECR 767; see also the Opinion of Advo- 26), Advocate General Warner argued that 'equal work' and cate General Warner, who took the opposite view) is no 'the same job' were not synonymous and he concluded that longer of particular importance because it was based on the full-time and part-time workers did not do the same job case-law beginning with the Defrenne judgment, cited in even though their work was 'equal'. This observation was footnote 17, concerning the direct effect of Article 119. linked to the question referred, which was whether the According to those judgments, Article 119 has direct effect requirement of 'equal work' was fulfilled, that being a ques- only in the case of 'direct and overt discrimination' which tion which logically precedes any other question because if may be identified solely with the aid of the criteria based on the work done by both groups of workers could not be equal work and equal pay referred to by the article in ques- regarded as equal work or work of the same value, there tion, and it is not necessary for there to be more explicit would be no grounds for applying Article 119.

In should be left to the national court. Likewise, on the basis laying down the criteria for comparing the work done by of Article 1(2) of Directive 75/117, the physical parameters the two groups of workers, the Court did not rely on the of a comparative study of tasks may De enlarged where conceptual distinction between 'equal work' and 'the same unequal treatment is found in a sector by virtue of a collec- job'. It referred in succession to the substantive criterion of tive agreement or of legislation. Sec, for example, the Opinion the nature of the work, the formal criterion of the condi- of Advocate General VerLoren van Themaat in Case 143/83 tions in which it is carried out, and the criterion of the Commission v Denmark [1985] ECR 427; Jenkins (cited in training received by the workers. It appears from the wording footnote 26), Case C-184/89 Nimz [1991] ECR I-297, Case of the judgment that the Court considered the last-mentioned 171/88 Rinner-Kühn [1989] ECR 2743 and Case C-33/89 criterion to be distinct from the others (paragraphs 32, 33 Kowalska [1990] ECR I-2591. and 42).

45 — Enderby, cited in footnote 16, paragraphs 13 to 19. 46 — See also Article 4(1) of Directive 97/80 (cited in footnote 14). 47 — Thus the Court has found that where a measure distin- guishing between persons according to working hours affects a much greater number of persons of one or the other sex, that measure must be deemed contrary to the aims of Article 119 of the Treaty, unless the employer proves that the mea- sure is based on objectively justifica factors unrelated to any discrimination on grounds of sex (Case 170/84 Bilka [1986] ECR 1607, paragraph 31; Kowalaska, cited in footnote 40, paragraph 16, and Nimz, cited in footnote 40, paragraph 15). The Court has observed that the burden of In addition, the Court has stated that, where an undertaking proving sex discrimination as to pay lies with applies a system of pay which is totally lacking in transpar- ency, it is for the employer to prove that his practice in the the person who claims that it exists, that is to matter of wages is not discriminatory, if a woman employee establishes, in relation to a relatively large number of say, the worker who believes himself to be employees, that the average for women is less than that for men (Danfoss, cited in footnote 22, paragraph 16). The Court the victim of such discrimination. However, has also observed that where significant statistics disclose an appreciable difference in pay between two jobs of equal value, one of which is carried out almost exclusively by women and the other predominantly by men, Article 119 of the Treaty requires the employer (or, generally, the person 44 — With regard to the criterion of working hours (full-or part- who must justify the distinction) to show that the difference time), see, for example, Jenkins (cited in footnote 26). For is based on objectively justified factors unrelated to any dis- the criterion of training, with which the present case is con- crimination on grounds of sex (Enderby, cited in footnote cerned, see Danfoss (cited in footnote 22, paragraph 23). 16, paragraph 19).

undertaking in question, 48 the conditions of nation exists will therefore only have to say work, 49 or, finally, necessary aims of social that the work in question is not equal work policy of the Member State concerned, the or work of the same value, by relying on one attainment of which makes the difference in of those factors, without having to show that pay suitable and necessary. 50 However, if it is the particular factor is objective and is unre- accepted that the conditions of work must be lated to discrimination based on sex. The mere examined, which would be logical, in connec- existence of that factor will entail differentia- tion with the preliminary question of whether tion in the type of work and will therefore the work in question is equal work or work mean that there is no discrimination contrary of the same value, the only objective criteria to the principle of equal pay laid down by which, at the later stage, could justify a dif- Article 119 of the Treaty. 52 Clearly, in this ference in pay, without further reference to case, it may not prove possible (not, at any the factors already considered to determine rate, without upsetting the case-law relating whether there is equal work or work of the to the reversal of the burden of proof and same value, will be exclusively the criteria objective justification) to verify the existence connected with the needs or the specific char- of many instances of 'indirect or disguised acteristics of the service or the undertaking discrimination' which are based on neutral where the work is carried out, 5 1 or with criteria connected with conditions of work or overriding aims of social policy of the Member workers' skills, but which in practice affect State concerned. In other words, many of the persons of only one sex. factors hitherto regarded as objective, which justify different pay for men and women and the existence of which must be proved by the employer (or the Member State or, generally, the person on whom the burden of proof lies), will henceforward be discussed in rela- tion to the preliminary question of whether the work in question is equal work or work of the same value, on which point it is the worker (normally a woman) pleading dis- crimination who has the burden of proof. An employer who justifiably denies that discrimi-

(a) O n the first interpretation, the Court may professional training, the two groups do remain faithful to the Macarthys judg- not have 'the same job', even if they do ment 53 and take the view that, where the the same work, in the sense that they per- task is the same, that is sufficient to show form the same duties. Simultaneously, the 'equal work' or 'work of the same value' difference in training entails a difference or 'the same job', even if that task is per- in the conditions under which the work formed with different professional quali- is done, so that the work of each group fications arising from different training, does not have the same economic or quali- and where one group of workers is quali- tative value. fied, by virtue of the professional quali- fication required, to perform other tasks in a wider field. This approach has the disadvantage of restricting the concept of 'equal work' to the situation where the same task is carried out and of disre- garding the semantic distinctions made in Article 119 of the Treaty. However, it has the advantage that it does not undermine the case-law on the distribution of the burden of proof. If this approach is taken on the facts of the present case, it will be clear that doctors and psychologists carry out equal work and have the same job From the conceptual viewpoint this because they perform the same task, that interpretation is more consistent than the is to say, psychotherapy, on the basis of first. However, it has two fundamental the training required by the Law on Psy- disadvantages. Firstly, it implies that chotherapy, taking account also of the persons having 'the same job' cannot periods of training laid down by that Law. possibly have different levels of training In such a case, it is not really the first and, secondly, it raises questions question which applies, but the sixth, as concerning the ambit of the case-law on the German Government and the Com- the burden of proof, as I have already mission point out. explained. If this interpretation is applied to the facts of the present case, it must be accepted that, as psychotherapists who are doctors and psychotherapists who are psychologists do not have the same training, the question of discrimination does not arise because the two groups are not in the same situation for the purposes of the Court's case-law and do not perform tasks of the same value. If the (b) O n the second interpretation, it is assumed Court adopts this interpretation, it may that where both groups of workers per- refrain from replying to the subsequent form the same duties, but have different questions from the national court because, in this case, the principle of equal pay for men and women laid down by Article 53 — Cited in footnote 27. 119 of the Treaty will not apply.

(c) If the third interpretation, the one that I 33. However, if the training factor is to be propose, is followed, the criterion of used meaningfully in two ways, it cannot training must be regarded as applicable in imply the same thing in both cases. As an two ways. It may be used as an objective objective criterion in relation to different pay criterion justifying a difference in the pay for equal work or work of equal value, dif- for equal work or work of equal value, ferent training cannot be identified with the and also as a criterion for comparing different training which, if it is found to exist, tasks. Furthermore, this position is con- leads to the conclusion that two groups of sistent with the Royal Copenhagen judg- workers do not carry out the same work or ment, 54 where the Court, in seeking to work of equal value. identify the factors permitting comparison of the situation of two groups of workers, observed that training is one factor for ascertaining whether workers are in a comparable situation. 5 5In taking this position, the Court stated in essence that the training factor could be used not only as a criterion justifying objectively a dif- ference in pay for equal work or work of the same value, as it did in the Danfoss case, 56 but also as a criterion for com- paring the duties carried out by two groups of workers. In addition, the above- mentioned judgment expressly confirms that there are two ways in which all the factors capable of justifying objectively a difference in pay and relating to the nature of the work and the conditions in which it is carried out may be applied. In par- ticular, the Court stated that the national court must ascertain whether, in the light of the facts relating to those criteria, equal value may be attributed to the work in question or whether any pay differentials are objective and unrelated to discrimina- tion on grounds of sex. 57 In the first case, the difference in training normally consists in qualifications at different levels or, generally, different levels of training. Here, the qualifications at different levels do not entail a distinction so profound that the occupation or job could be said to be dif- ferent, but they may justify a difference in the 54 — Cited in footnote 21. pay for the same work. The case is similar to 55 — Royal Copenhagen, cited in footnote 21, paragraphs 32 and that where two workers carry out the same 33. 56 — Cited in footnote 22. work, but one is presumed, by reason of his 57 — Royal Copenhagen, cited in footnote 21, paragraph 42.

34. The fundamental nature of the difference is, in any case, like all the factors used to compare the duties at issue, a question of fact which must be determined by the national court. It must, however, base its assessment on the objective nature of the fundamental difference in training. 59 In my view, a dif- ferent professional qualification for each group of workers is a legitimate objective criterion However, the difference in the level of quali- for determining whether there is a funda- fications may be very great or the difference mental difference in training, with the conse- in training may be not only quantitative, but quence that the person in question does com- also qualitative, so that the qualification in pletely different work or has a completely question is different and therefore the work different job. The qualification, which deter- is neither the same nor of equal value in rela- mines the scope of the tasks which may be tion to that of another group of workers who assigned to a worker and which is awarded have not received the same training. In that by reference to criteria connected with the case, the fundamentally different training, as worker's training and skills, is an essential the Commission puts it, may imply that the element of the work, as the Health Fund work has a different nature or purpose. There- points out. Therefore, if two employees have fore it may be that employees of the different different qualifications because their training groups perform duties with a different nature was fundamentally different, it follows that or purpose within the same service or under- the work or the job in question is different, taking, but without doing equal work or work even if the employees carry out duties which of equal value or without having the same job appear to be identical. However, if this dis- or a job of the same value, because the fun- tinction is to be made on the basis of the dif- damental difference in training may alter ferent qualifications of the persons concerned, the latter must be recruited and must perform

their duties on the basis of their own quali- 36. Therefore I propose that the Court's reply fication which is related to those duties. to the first question be that Article 119 of the Treaty 60 must be interpreted as meaning that there is not 'equal work' or 'the same job' where employees have different professional qualifications because they have received fun- damentally different training, and perform the same duties over a considerable length of time (several salary periods), if those employees are recruited on the basis of those qualifica- tions and if the qualifications relate to the duties which they perform. 35. In the present case, according to the facts in the order for reference, the doctors who work as psychotherapists appear to continue to practise as doctors and, if necessary, to per- form the associated duties, unlike the gradu- ates in psychology, who practise only as psy- chotherapists. Furthermore, as the 37. In view of the facts set out in the order Commission and the Health Fund point out for reference, if the Court agrees with the in their observations, the doctors can make reply proposed above, it is unnecessary to use of all their knowledge in looking after reply to the other questions, unless for the patients and that is why the Health Fund sake of completeness, because the question of concludes with them contracts governed by applying the principle of equal pay laid down Staff Regulation B, irrespective of the exact in Article 119 of the Treaty no longer arises. duties they perform. Consequently, according to the abovementioned facts, which must ulti- mately be clarified by the national court if necessary, if the training of the two groups of employees is fundamentally different and that difference is confirmed by different qualifica- tions, the two groups do not carry out equal work or have the same job. Even though their C — The sixth question duties, considered by reference to the pur- pose thereof, appear to be the same, that is to say, psychotherapy, the persons concerned possess fundamentally different knowledge and experience, and therefore fundamentally different therapeutic skills, and this has a sig- nificant influence on the work they perform. The fact that the work is invoiced at the same 38. I now wish to discuss the sixth question, rate by the Health Fund does not necessarily as it is connected with the first. The Ober- preclude that finding because there is nothing landesgericht Wien asks whether, where to show that the invoices are based on the quality or actual market value of the treat- ment provided by each group of psychothera- 60 — In the reply it is sufficient to refer to Article 119 of the pists, and the invoicing may be based on con- Treaty and it is not necessary to add a reference to Directive 75/117: see Macarthys, cited in footnote 36, paragraph 13, siderations of social policy. and paragraph 23 of this Opinion.

39. First of all, it must be observed that the 40. The Court has held that those criteria problems raised by the sixth question arise include the training factor, meaning that the only if both groups of employees, in this case best-paid training is relevant to the perfor- mance of specific tasks entrusted to the doctors and psychologists both practising psy- employee, and the adaptability factor, meaning chotherapy, carry out equal work or work of that an increase in pay is justified by willing- the same value, or have the same job. Bearing ness to adapt to changing hours and places of in mind, however, the discussion of the pre- work, where the employer shows that such vious question, the sixth question is justified adaptability is relevant to the performance of in only two cases: (a) if the Court adopts the specific tasks entrusted to the employee, but first interpretation, to the effect that per- not if that factor relates to the quality of the forming the same duties is sufficient for there to be 'equal work' or 'work of equal value' or 'the same job'; (b) if, in accordance with the 61 — Enderby, cited in footnote 16, paragraphs 18, 19 and 25, and third interpretation, the Court takes the view Bilka, cited in footnote 47, paragraphs 35 and 36.

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41. In my opinion, the criterion of flexibility accepted by the Court in Danfoss 6 4must also cover the idea of adaptability to the perfor- mance, in one and the same establishment, of different duties covered by the qualification held by the person concerned. Such flexibility is by nature absolutely neutral in relation to sex or, at least, is no different from the crite- rion of flexibility in the sense already accepted 43. Finally, it must be observed that the cri- by the Court. By comparison with the rea- terion of adaptability to different tasks in the soning in Danfoss, it is no more difficult for same undertaking, which is based on the pro- women to perform other, related, duties than visions protecting employees against arbitrary to adapt to different working times in so far dismissal, does not conflict with the require- as such other duties do not necessarily entail ment that the objective criterion of differen- a change in working times. tiation should meet a real need of that estab- lishment or undertaking. 66'Real need' means not only present needs, but also future needs 62 — Danfoss, cited in footnote 22, paragraphs 17 to 25, which which are bound to arise. In the present case, states that application of the abovementioned criteria is sub- ject to the requirement that they are not based on generalisa- tions about certain categories of workers, but arc objective, which depends on the circumstances of each case and, above all, their relationship with the nature of the work performed. 65 — On this point, it may be appropriate also to consider the Regarding this requirement, see Rinner-Kühn, cited in foot- other problems connected with the possibility of performing note 40, paragraph 14, and Nimz, cited in footnote 40, para- several related tasks. For example, it may be appropriate for graphs 13 to 15, which, contrary to the observations of the the national court to consider whether medical ethics permit Staff Committee, do not deny that the training criterion is doctors practising in a specialist field (for example, psychia- legitimate and objective. trists who, in the present case, arc employed as psychothera- 63 — Danfoss, cited in footnote 22, paragraphs 21 and 23. pists) to practise in another. 64 — Cited in footnote 22. 66 — Bilka, cited in footnote 47, paragraph 36.

the establishment of employees in their post Furthermore, in Macartbys 70 the Court states after ten years means that there will be an that 'in cases of actual discrimination falling undoubted future need for adaptability and within the scope of the direct application of flexibility on the part of employees in the Article 119, comparisons are confined to par- undertaking. allels which may be drawn on the basis of concrete appraisals of the work actually per- formed by employees of different sex within the same establishment or service'. 71 In the present case, however, the requirement that duties be actually performed does not relate to the problem raised by the main proceed- ings with which we are concerned here, but is connected with the Court's refusal to allow a comparison between a female employee and 44. However, is the question whether the a 'hypothetical male employee', in the sense employee actually uses at all times all the that the former could not claim the pay which capabilities he has by virtue of his profes- she could demand if she were a man, even sional qualifications decisive? though no man was doing or previously did the same work. The present case does not involve the question of the 'hypothetical male employee', which is bound up with the spe- cial features of the Macarthys case, 72 but the problem of a male employee who can, by reason of his training and, above all, his pro- fessional qualifications, perform in the same establishment several duties related to that which he carries out at any given time. As it stands, the Court's case-law does not appear to say that it is. According to Dan- foss, 67 the criteria of training and adaptability to varying hours and varying places of work must be relevant to the performance of spe- cific tasks entrusted to the employee. 68 This does not necessarily mean that in every case all the duties permitted by professional training or by the ability to adapt must be actually performed. As also appears from the Opinion of Advocate General Lenz, the con- dition laid down in Danfoss simply means In my view, therefore, not only more advanced that training and adaptability must be objec- training, but also a different professional quali- tively related to the duty in question, that is fication entitling the holder to perform sev- to say, they must relate to the work eral related duties in one and the same estab- done. 69 lishment constitute an objective criterion for a difference in pay, in conformity with the

requirements laid down in Danfoss, 73 regard- enable them to carry out different duties if less of whether the employee actually exer- the need arose in the establishment received cises at all time all the options given to him the same pay as those with such training or by the qualifications in question. qualifications, the result would be that the establishment would recruit only employees of the second group. In the present case, why should the Health Fund in the future appoint psychologists as psychotherapists if it has to pay them the same as doctors even though they cannot be used for as many purposes as a qualified doctor, and why should the Fund not recruit only doctors who can also per- 45. That view is consistent with the principle form the duties of psychologists? If their of equality. Since two groups of employees respective pay were made equal, the conse- performing the same duties are not objec- quences would ultimately be adverse for the tively in a similar professional situation in group of employees whose pay would ini- relation to the economic needs of the estab- tially be increased. 74 lishment and to the tasks entrusted to them, it is legitimate to pay them a different salary on the basis of proportionate equality. Thus, in the present case, in so far as it has been shown that they have an obligation to give first aid under Paragraph 21 of the Law on Medical Practice and that they may prescribe medicines and, if necessary, be assigned to other areas of health care, depending on their specialisation, it is logical that the doctors' pay should differ from that of psychologists 47. Therefore, in so far as the sixth question who, by reference to the diverse services pro- calls for a reply, I propose that the Court vided in the field of health care by a health reply that, where there is overt discrimination fund such as the respondent, appear to be in the matter of pay between two categories able to perform tasks of only limited scope of men and women at work or a pay practice by comparison with doctors.

— the employer may justify the difference in pay by reference to the criterion of pro- fessional training, if he shows that it is relevant to the specific tasks entrusted to the employee;

49. At first sight it seems that, as the Com- mission states in its observations, the choice — the employer may justify the difference in between three types of collective agreement is pay by reference to the criterion of pro- irrelevant on the facts here, because the staff fessional qualifications enabling the person regulations were adopted in the form of col- concerned to perform several different lective agreements laying down a method for tasks in the establishment, if the employer fixing pay, which binds the various social shows that that criterion is relevant to the insurance institutions in so far as they may specific tasks entrusted to the employee alter the agreements only with the written or may meet the establishment's need to consent of the General Association of Aus- assign employees to duties which differ trian Social Insurance Institutions, which drew from those already performed and which up the collective agreements (Paragraph 460 are covered by the qualification and the of the ASVG). 75 employment relationship, taking account of the provisions of collective agreements protecting employees against dismissal.

D — The second question

However, even if the choice among the three types of collective agreement is a hypothetical one, the Court is asked to reply to the ques- tion whether the mandatory type of 48. The second question asked by the Ober- landesgericht Wien is whether, in determining whether there is discrimination for the pur- poses of Article 119 of the Treaty or Direc- 75 — For the Court's refusal to reply to hypothetical questions, see Case C-83/91 Meilicke [1992] ECR I-4871, paragraph tive 75/117/EEC, decisive importance must 25.

52. Therefore, if the Court considers that the meaning of the question is as stated above, I propose that the Court reply that for a finding of discrimination for the purposes of Article 50. It must also be observed that the wording 119 of the Treaty or Directive 75/117 it is not of the second question presents certain prob- material (a) that pay is determined exclusively lems. It is not quite clear whether the national by the parties to the employment contract, court is asking whether the existence of dis- that is to say, they may decide whether to crimination with regard to pay, for the pur- have the terms of the collective agreements pose of Article 119 of the Treaty, depends on incorporated therein, (b) that mandatory min- the nature of the system of collective agree- imum levels of pay for every employee in ments governing the pay of two different a particular field are fixed by general rules groups, or whether it is asking if that system (collective agreements), or (c) that pay is must be taken into account in determining mandatorily governed entirely by collective the standards applicable for a rinding of dis- agreements. crimination contrary to Article 119.

agreement on the creation of the framework context of the pay policy adopted. 77 The need in which the discriminatory conditions are to go beyond the specific undertaking and laid down, the Court will have an opportu- refer to the pay classification system laid nity, in view of the facts of the main proceed- down by the collective employment agree- ings, to clarify certain points concerning the ment becomes even more important where application by the national court of the prin- the agreement provides, as in the present case, ciple set out in Article 119 to collective agree- for a definitive and mandatory pay system ments, such clarification being important for which leaves the employer with no power to the main proceedings and also having a bearing differentiate on the basis of an individual con- upon the replies to the other questions referred tract of employment. 78 In this case, the col- by the national court. lective agreement is the source of the objec- tive criteria which may justify differences in pay. The Court has observed that 'the fact that the rates of pay have been determined by collective bargaining or by negotiation at local level may be taken into account by the national court as a factor in its assessment of whether differences between the average pay of two groups of workers are due to objective fac- tors unrelated to any discrimination on grounds of sex'. 79

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observed that, where pay is determined by contracting parties must be the same and the collective agreements for each sector, the fact economic sector covered by the agreements that employees are in two different sectors in question must be the same. In the present may justify the conclusion that the require- case, it is clear from the order for reference ment of equal work or work of equal value is that all the staff regulations were adopted by not fulfilled.80 However, the Court has devel- the General Association of Austrian Social oped certain criteria concerning the manner Insurance Institutions and cover the same in which a national court should assess the economic sector, that is to say, social insur- fact that details of pay for two groups of ance institutions, and during the oral proce- employees are determined by collective agree- dure the parties to the main proceedings both ments. For example, in Enderby,81 the Court admitted that the agreements in question had stated that 'the fact that the rates of pay at been drawn up by the same parties. In any issue are decided by collective bargaining pro- case, however, it is still incumbent on the cesses conducted separately for each of the national court, which has the best informa- two professional groups concerned, without tion on the legal context and the facts of the any discriminatory effect within each group, case before it, to determine whether the above- does not preclude a finding of prima facie mentioned requirements are fulfilled. discrimination where the results of those pro- cesses show that two groups with the same employer and the same trade union are treated differently. If the employer could rely on the absence of discrimination within each of the collective bargaining processes taken separ- ately as sufficient justification for the differ- ence in pay, he could ... easily circumvent the principle of equal pay by using separate bar- gaining processes'. 82

59. Let me begin with a few general observa- tions. In the case of indirect discrimination, the Court's case-law shows that the context E — The third, fourth and fifth questions and the composition of the groups to be compared for the purpose of determining whether there is indirect discrimination not only may, but also must, be subject to certain conditions. 83 This is reasonable because, if the comparison is to be relevant, it must involve representative groups of workers as it would be unacceptable simply to endorse a choice which is deliberately designed to sup- port the argument of one of the parties. In 58. The third question referred by the national any case, clearly, whether the comparison is court concerns the composition of the groups relevant is a question of fact and within the to be compared (the persons actually employed exclusive competence of the national courts, 84 in the undertaking, the employees covered by which, of course, does not prevent the Court the collective agreement, all the persons with of Justice from laying down certain criteria to the qualifications in question) for the purpose guide the national courts in their assessment. of determining whether there is discrimina- tion, where a collective agreement provides that pay for the same work or for work of equal value is to vary according to the em- ployee's professional qualifications. The fourth question asks whether the relevant propor- tion of men to women is that in the disad- vantaged group only, or that in both groups. Finally, still in the context of the problems touched upon by the third question, the fifth question asks about the exact groups to be 60. The first criterion regarding the composi- compared in each context, where the same tion of the groups to be compared can only duties which both groups perform represent only some of the duties covered by the rel- evant professional qualification. I think it will 83 — See Enderby (cited in footnote 16, paragraph 17) and Dan- be expedient to consider these questions foss (cited in footnote 22, paragraph 16). 84 — See the Opinion of Advocate General Léger in Royal Copen- together as they all relate to the context hagen (cited in footnote 21, paragraphs 28 to 30).

be the context in which the group is formed. the context of the institution concerned. 85 As The Court's case-law shows that there is no the Commission observes, if account were general rule, but the context is determined taken of all the employees having the quali- according to the circumstances of each case. fications in question, the groups to be com- As the German Government points out in its pared would be so heterogeneous that it would observations, the decisive factor is the scope be pointless to compare them. Moreover, at of the rules in question which are suspected that level the problem of discrimination would of giving rise to discrimination for the pur- not arise. pose of Article 119 of the Treaty. Further- more, the principle of equal pay laid down by Article 119 is clearly aimed at the body responsible for adopting the rules in question. Consequently, if they appear in a law, the groups to be compared must consist of all the employees whose pay is governed by that law. Similarly, if the rules are the result of a deci- sion or a practice of a given employer, the groups to be compared must consist of all the 62. Therefore I propose that the Court reply employees of the employer in question. as follows to the third question: where a col- lective agreement provides that pay for the same work or for work of equal value is to vary according to the employees' professional qualifications, which is to serve as the criter- ion for forming the groups to be compared for the purpose of determining whether a particular measure gives rise to discrimina- tion, the employees to be taken into account are those covered by the collective agreement. 61. Regarding the context of the groups to be compared for determining whether discrimi- nation exists, it follows from what has already been said that the conclusions reached con- cerning the second question are of decisive importance, having regard to the facts set out in the order for reference. The fact that, firstly, the pay scales of the two groups, that is to say, doctors and psychologists, are deter- mined by collective employment agreements 63. With regard to the fourth question, the and, secondly, those agreements, which are Court's case-law appears at first sight to have concluded by General Association of Aus- reached different conclusions depending on trian Social Insurance Institutions, are binding the particular case, as the national court points on the various social insurance institutions, on the basis of the conditions laid down in Paragraph 460 of the ASVG, and apply to 85 — However, it is important for the national court to establish those institutions as internal staff regulations, whether the fund or the undertaking in question takes spe- cific steps (practices, assignments, etc.) to determine which indicates that the groups of workers to be doctors (according to their specialisation) or psychologists compared must be formed in the context of will be recruited and will practise psychotherapy, so that the permanent difference in pay of men and women is essen- the collective agreements in question, not in tially the result of those steps.

out in the order for reference. For example, for different pay because of the number of in Jenkins, 86 the Court merely examined the working hours could entail such discrimina- category suffering discrimination, i. e. part- tion because it was difficult for women, by time workers, 87 whereas in Enderby 88 it com- reason of household and family duties, to pared two groups of workers, speech thera- work on a full-time basis. 91 This finding, pists and pharmacists, one consisting almost which reflects normal experience, is the objec- exclusively of women and the other almost tive basis of the judgment concerning indirect exclusively of men. 89 discrimination. According to the reasoning in that judgment, where an objective criterion of that kind exists, it may not be necessary to ascertain the proportion of men and women in the two groups of employees. In such a case, discrimination, even if it has the formal characteristics of indirect discrimination, is in essence much more likely to be regarded as direct discrimination because membership of the occupational group in question is deter- mined at the outset on the basis of sex. There- fore it is sufficient for the national court to find that discrimination exists in an occupa- tion which is, by nature, a ‘female occupa- tion', so that it is unnecessary to compare the In my opinion, these differences in the case-law two groups. 92 In contrast, where indirect dis- . are due to the fact that, depending on the cir- crimination cannot be proved by the nature cumstances of each case, the Court, in order of the professional group, as in Enderby, the to satisfy itself of the existence of indirect 'female' or 'male' nature of the occupation discrimination, not only examines statistical data relating to the groups compared, which will be shown by a statistical analysis of one by nature are liable to fluctuate and may in of the groups of employees in question, and general be unreliable, but also requires its that analysis must always be compared with conclusions to be supported on grounds which that of the other group. 93 are as objective as possible. 90 More particu- larly, in Jenkins, the Court found that dis- crimination against women was shown by the fact that the ostensibly objective justification

Therefore, unlike the national court which, in of women in the group suffering discrimina- the order for reference, states that, if one tion to be 'much higher' than the percentage group of workers can be regarded as a typical of men and/or requires the percentage of case from the viewpoint of working condi- women in the favoured group to be 'much tions (as in the case of full-time workers), in lower' than the percentage of men. 94 As I principle it is sufficient to examine the pro- stressed in my Opinion in Seymour-Smith portion of men and women in the group suf- and Perez, 95 to ascertain whether there is a fering discrimination, whereas in all other 'significant difference' in the percentages in a cases the two groups must be compared, I group, the composition of the other group think that, according to the Court's case-law, must also be taken into account. The other it is sufficient to examine the proportion of group must show a contrary trend, or iden- men and women in the group suffering dis- tical percentages, or the same trend but much crimination only where an objective factor, less marked than in the first group. If the per- normally the fact that membership of the centage difference is the same or similar in group is determined at the outset on the basis both groups, the workers in the two groups of sex, indicates that, by reason of its nature, are being treated in the same way and not that group corresponds to a purely female or unequally. 96 male occupation.

64. In any case, even where the Court appears to be satisfied with examining the group suf- fering discrimination, a comparative analysis of the data relating to the two groups cannot 66. Secondly, as the existence of indirect dis- be ruled out. crimination is a rebuttable presumption, the presence of a higher percentage of women not only in the group suffering discrimina- tion, but also in the favoured group, is logi- cally material evidence that the difference in question is objective and unrelated to dis- crimination on grounds of sex, which is a factor upon which the employer can rely. 97 Obviously, it could be objected that in that

case it is incumbent on the employer, not the that, having regard to the foregoing observa- employee, to prove the proportion of men tions, the question of choice does not arise. and women in the second group. Therefore The profession of psychologist- the decision whether, in each case, the pro- psychotherapist cannot, on the basis of the portion of men and women in both groups conditions for practising it, be described as must be analysed may depend on the burden purely female by nature, while the criterion of proof of discrimination. However, this of psychologist's or doctor's qualifications observation does not appear to run counter may in principle be regarded as objectively to the need in principle to compare the pro- neutral as regards sex, in so far as both pro- portion of men and women in both groups of fessional groups require a high level of pro- workers. As I have already said, where the fessional training, so that the differences Court has merely examined the data on the between them cannot be assumed to arise group suffering discrimination, there was from the fact that women have had less oppor- objective proof of indirect discrimination, tunity than men for training or have taken based on common experience, and such proof less advantage of such opportunity. 98 generally confirms the original certainty con- cerning the data drawn from statistical analysis of the two groups. Comparative analysis of the proportion of men and women in the two groups is the rule, which applies in all cases of doubt, whereas examination of only one group is the exception. Furthermore, com- parative analysis of the proportion of men and women in the two groups accords with the fundamental principle governing evidence of discrimination, based on comparing repre- 68. I think that the Court should reply to the sentative groups of workers, a principle which fourth question as follows: as regards proof makes the choice of only one group unac- of indirect discrimination in a situation such ceptable because it may be thought that it as that described by the second and third was made for the purposes of the case, that is questions, the proportion of men and women to say, to support the arguments of one of the in both groups, that is to say, the group suf- parties. fering discrimination and the favoured group, is always decisive.

court must delimit those groups carefully, judgment, there appears to be no reason why which is the problem raised by the fifth ques- they should apply only to piece workers. tion referred by the national court. The Court of Justice has to a large extent laid down the criteria for such delimitation, so that the choice and the composition of the groups is not the result of chance and the groups can be compared. Therefore, according to the Royal Copenhagen judgment, 99which sum- marises the Court's prior case-law, 'consider- ation of whether the principle of equal pay has been observed requires a comparison between the pay of workers óf different sexes for the same work or for work to which equal value is attributed. Where such a comparison involves the average pay of two groups of workers paid by the piece, it must in order to be relevant encompass groups each comprising all the workers who, taking account of a set of factors such as the nature of the work, the training requirements and the working condi- tions, can be considered to be in a compa- rable situation. The comparison must more- over cover a relatively large number of workers 100 in order to ensure that the differ- ences found are not due to purely fortuitous or short-term factors ... It is for the national 70. In the present case the groups to be com- court to make the necessary assessments of pared must therefore be formed on the basis the facts of the main proceedings in the light of the abovementioned criteria in the context of the abovementioned criteria'. 101 It seems of general collective agreements, as I indi- therefore that the abovementioned criteria cated in my reply to the third question. apply generally. In spite of the wording of the Applying the criterion of difference in pay rates which is introduced by the collective agreements, that is to say, by reference to the criterion of qualifications, it seems that the two groups in question are, firstly, psycholo- gists qualified to practise as such on a self- employed basis and who work in all Austrian social insurance organisations and, secondly, doctors qualified to practise as such on a self- employed basis and who work as medical specialists in all Austrian social insurance 99 — Cited in footnote 21. organisations. Therefore in the context of 100 — However, the question of specifying a minimum number those two groups, for which the difference in did not arise. See the Opinion of Advocate General Léger in that case (paragraph 30). pay is the result of collective agreements, it is 101 — Paragraphs 32 to 35. See also Enderby (cited in footnote 16, necessary to analyse the percentages of men paragraph 17).

71. However, the problem raised by the fifth Normally, the work of the groups to be com- question is not so simple as it appears at first pared must be the same or work of equal sight because it must not be forgotten that, value. 103 Consequently, in order for the national court to determine in more detail the groups to be compared, in principle it must be shown that they perform the same work or work of equal value. However, as I said 102 — It should be observed that, with regard to the context of with regard to the first question, because the the groups in question, the necessary statistics are not given clearly in the documents in the file. It gives no exact figures qualifications involved in the present case are concerning the percentages of men and women among all qualified psychologists or among all doctors working in all different, it cannot be said that the work is Austrian social insurance organisations. Some figures were the same or of equal value unless the practice

g roups of workers must be compared in the context of col- that of holding a given qualification, so that ective agreements, during the oral procedure the Commis- sion compared psychologists practising psychotherapy with the groups concerned are in similar situations. doctors in general and, in addition, in its written observa- It follows that the two groups to be com- tions it compared the figures which, so far as doctors are concerned, relate to all employees of the Insurance Fund pared must, first, be psychologists qualified and, for qualified psychologists, relate to all employees practising psychotherapy in the sector of social insurance to practise as such on a self-employed basis organisations (see the Commission's written observations, paragraph 48). Consequently the conclusion to which the and who work as psychotherapists in all Aus- Commission is led, that women form the majority among both doctors and psychologists, is not persuasive because trian social insurance organisations and, sec- it is not founded on suitable statistical data. ondly, doctors qualified to practise as such on At the same time, the way in which one must determine the context in which the comparison of groups of workers a self-employed basis as specialists and who must be made, the question I have just dealt with, invali- dates the Health Fund's remark that the fact that the main work as psychotherapists in all Austrian social proceedings concern only one out-patients' clinic belonging to only one social insurance organisation and, within that insurance organisations. clinic, only six doctors and six psychologists, whereas the rules on the status of employees of social insurance organi- sations apply to a total of 1 932 doctors, 50 psychologists and 27 651 other workers, is significant in the light of the Court's case law to the effect that, for determining whether there is a breach of the principle of equal pay for men and 103 — See the Opinion of Advocate General Lenz in the Danfoss women, the comparison must cover a relatively significant case (cited in footnote 22, paragraph 40). See also the Royal number of individuals so as to exclude purely fortuitous Copenhagen judgment (cited in footnote 21, paragraphs 32 phenomena. and 33).

However, a comparison in the context of the the work is the same or of equal value can be abovementioned groups in order to ascertain assessed only in a context other than that in whether there is a problem of discrimination which the groups of employees are compared in relation to pay would not be adequate. in order to ascertain whether there is a problem With regard to the rates of pay of the two of discrimination in pay, which proves two groups of workers, doctor-psychotherapists things. In the first place, it shows how dif- and psychologist-psychotherapists, the groups ficult it is to find without hesitation that two which are compared in terms of numbers are, groups of employees do the same work or as I mentioned previously, determined in the work of equal value — or do the same job — context of collective agreements, which lay where the two groups happen by chance to down mandatory rates of pay. If, neverthe- perform the same tasks, without disregarding less, it is necessary to take into account the any aspect of their different professional status. sub-groups of doctors and psychologists prac- Secondly, it shows in this particular case the tising psychotherapy in all Austrian social complex conclusions to which we are bound insurance organisations, the purpose of this is to be led if we accept that idea. only to ascertain whether their work is the same or of equal value. If, therefore, in that context there were statistics which might indi- cate a problem of discrimination against women, but no similar statistics in the con- text of collective agreements, 104 in practice that discrimination would not relate to pay but to other aspects of the work in question. 72. Subject to this last observation, I propose In particular, there might be discrimination that the Court, if it deems it appropriate to on grounds of sex with regard to the choice, do so, reply to the fifth question as follows: among doctors and/or psychologists, of per- where the duties in question performed by sons to practise psychotherapy. the two professional groups are comprised in the duties covered by professional qualifica- tions, it is necessary to take account of all the employees possessing a qualification of that type who are within the scope of the collec- tive employment agreement.

agreement or staff regulations entails discrimi- run counter to the principle of legal certainty nation on grounds of sex, contrary to Com- which is inherent in the Community legal munity law, that discrimination will be ter- order. When considering whether that prin- minated only on the date of a finding to that ciple imposes a limitation on the effect ratione effect by the Court of Justice or whether it temporis of a judgment given on a reference will be terminated with retrospective effect. for interpretation, the Court determines whether (a) there is a risk of serious eco- nomic repercussions owing in particular to the large number of legal relationships entered into in good faith on the basis of rules con- sidered to be validly in force, and (b) indi- viduals and national authorities have been

force. It follows that the rule as thus inter- vant. 106 preted may, and must, be applied even to legal relationships arising and established before the judgment ruling on the request for inter- pretation, provided, of course, that in other respects the conditions enabling an action relating to the application of that rule to be brought before the courts having jurisdiction are satisfied. 105 The Court has consistently held that such a restriction may be allowed only in the actual judgment ruling upon the interpretation sought. 107 However, that restriction does not apply to persons who brought legal proceed- ings or submitted an equivalent claim before

47. See also Case 61/79 Denkavit Italiana [1980] ECR and Poulsen Trading [1992] ECR I-2217, paragraph 20 et 1205, paragraph 16; Joined Cases 66/79, 127/79 and 128/79 seq.; Case C-163/90 Ugros and Others [1992] ECR I-4625, Salumi and Others [1980] ECR 1237, paragraph 9; Case paragraph 28 et seq.; Joined Cases C-367/93 to C-377/93 811/79 Ariete [1980] ECR 2545, paragraph 6; Case 826/79 Roders and Others [1995] ECR I-2229, paragraph 41 et Mireco [1980] ECR 2559, paragraph 7; Case 222/82 Lewis seq.; Joined Cases C-485/93 and C-486/93 Simitzi [1995] and Others [1983] ECR 4083, paragraph 38; Case 309/85 ECR I-2655, paragraph 29 et seq.; and Case C-137/94 Barra [1988] ECR 355, paragraph 11; Case 210/87 Pado- Richardson [1995] ECR I-3407, paragraph 32 et seq. vani and Others [1988] E C R 6177, paragraph 12; Case 269/87 Ventura [1988] ECR 6411, paragraph 15; and Case 107 — See Blaizot (cited in footnote 106, paragraph 28). C-62/93 BP Supergas [1995] ECR I-1883, paragraph 39. 108 — See Blaizot (cited in footnote 106, paragraph 35).

76. O n the basis of the observations in the order for reference, the seventh question does not arise if, in reply to the first question, the Court finds that the work in question is 'the same work' or 'work of equal value'. The seventh question arises only if, in reply to the sixth question, the Court finds that, where the same tasks are performed, the different O n the basis of the case-law laid down in levels of training and the different qualifica- Danfoss,112 the Member States and employers tions do not in themselves constitute differ- and employees would be fully entitled to ences justifying discrimination within the believe that different levels of training, and meaning of Article 119 of the Treaty. Conse- different qualifications which are attributable quently the conditions for applying the above- to different training, constitute, in the cir- mentioned case-law must be examined only cumstances described by the said judgment, in the latter case. differences objectively justifying discrimina- tion within the meaning of Article 119 of the Treaty. Therefore, should the judgment to be given by the Court differ significantly from the principles set out in Danfoss, that really would create a risk of serious economic reper- cussions owing in particular to the large 77. The direct application of Article 119 has number of legal relationships entered into in been a settled principle of Community law good faith on the basis of rules considered to since the judgments in Defrenne 110 and Jen- be validly in force under Community law, kins. 1 11Since 1 July 1995, the date of the and to the fact that employers and employees accession of the Austrian Republic to the have been prompted to adopt practices which European Union, employers and employees do not comply with Community law by in Austria cannot have failed to be aware of reason of objective, significant uncertainty regarding the implications of the Community

(1) Article 119 of the EC Treaty must be interpreted as meaning that 'equal work' or 'the same job' does not exist where employees have different professional qualifications because they have received fundamentally different training and perform the same duties over a considerable length of time (several salary peri- ods), if those employees are recruited on the basis of those qualifications and if the qualifications relate to the duties which they perform.

(2) If the foregoing reply is given to the first question, it is unnecessary to reply to the others.

113 — For the protection of legitimate expectation created by the Court's case law, see Case C-308/93 Cabanis-Issarte [1996] ECR I-2097, paragraphs 47 and 48 and paragraph 2 of the operative part.

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