C-381/99

OPINION OF MR GEELHOED — CASE C-381/99

OPINION OF ADVOCATE GENERAL GEELHOED delivered on 15 March 2001 1

I — Introduction I I — The applicable provisions

A — Frovisions of Community law

2. The first paragraph of Article 141 EC (formerly Article 119) provides as follows: 1. By this reference under Article 177 of the EC Treaty (now Article 234 EC), the Oberlandesgericht Wien (Higher Regional Court, Vienna) (Austria), has submitted six questions to the Court for a preliminary 'Each Member State shall ensure that the ruling on the interpretation of Article 119 principle of equal pay for male and female of the EC Treaty (Articles 117 to 120 of the workers for equal work or work of equal EC Treaty have been replaced by Arti- value is applied.' cles 136 EC to 143 EC) and Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the applica- tion of the principle of equal pay for men 3. The second paragraph of Article 141 EC and women. The Oberlandesgericht essen- provides as follows: tially seeks to ascertain (i) whether classi- fication in the same job category under a collective agreement is sufficient for work to be the same or of equal value, (ii) on whom the burden of proof regarding the alleged discrimination lies, and (iii) the 'Equal pay without discrimination based on extent to which a difference work effec- sex means: tiveness, which is demonstrable only ex post facto, may be a criterion justifying a difference in pay for the same work or work of equal value. (a) that pay for the same work at piece rates shall be calculated on the basis of 1 — Original language: Dutch. the same unit of measurement;

'The principle of equal pay for men and women outlined in Article 119 of the 6. As can be seen from the order for Treaty, hereinafter called "principle of reference, under Austrian employment equal pay", means, for the same work or law, pay is in principle determined by the for work to which equal value is attributed, parties under a contract of employment. In the elimination of all discrimination on many sectors, however, minimum pay is grounds of sex with regard to all aspects laid down in collective agreements. Whe- and conditions of remuneration. ther the application of these collective agreements is mandatory depends on whe- ther the employer is affiliated to the employers' organisation that was a party to the collective agreement. Collective agreements are usually concluded on the employees' side by voluntary occupational collectivities (trade unions) and on the employers' side by industrial sector organi- sations for the representation of employers' interests, but in some cases by voluntary In particular, where a job classification associations or legal persons governed by system is used for determining pay, it must public law (Paragraph 4 et seq. of the be based on the same criteria for both men Arbeitsverfassungsgesetz (Law on the and women and so drawn up as to exclude Organisation of Undertakings) Bundesge- any discrimination on grounds of sex.' setzblatt 22/1974).

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Minimum rates of pay are usually deter- to the number of hours' overtime actually mined in collective agreements on the basis worked. of the specific activities in question, that is to say the activities that the employee actually performs, and a minimum rate of pay is usually set for those activities taking into account the number of years the employee has been performing those activ- An obligation to work overtime may be ities (particularly in the case of salaried provided for, inter alia, by the contract of staff). Collective agreements are interpreted employment. in the same way as statutes in that regard.

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BRUNNHOFER

who carry out skilled banking tasks inde- withdrawable fixed amount for overtime, pendently'. Article 6 of the collective agree- of ATS 43 871. It is not disputed that ment provides that the working period is Ms Brunnhofer's basic salary, including 38.5 hours, and Article 7 lays down rules the increases laid down by the collective on the payment of overtime. Point I of agreement, was the same as that of her Article 8 of the collective agreement pro- male colleague, that both their fixed vides that every new employee's job must amounts for overtime were calculated in be classified, and that for job category V, accordance with Article 7 of the collective among others, the works council and the agreement applicable to banks and bankers personnel department must try to reach and that neither Ms Brunnhofer nor her agreement on classification. Point II of male colleague received special increases in Article 8 provides, moreover, that the salary, other than the rises under the actual (principal) activities must always be collective agreement. the criterion in that regard.

11. Ms Brunnhofer claims that she has suffered pay discrimination on grounds of her sex. Although the basic salary, includ- III — The facts ing the increases laid down by the collective agreement, of the employees concerned was the same, there was still a difference in salary given that her male colleague received a monthly supplement as a result 9. At issue between the parties in the main of which he earned around ATS 2 000 proceedings, who are Susanna Brunnhofer more than Ms Brunnhofer. Since the time and the Bank der österreichischen Post- when they entered employment, the two sparkasse (hereinafter 'the Bank'), is a employees concerned had been classified in difference in pay for male and female the same salary scale under the collective workers for the same work or work of agreement. equal value.

13. The Bank denies the existence of any pay discrimination and maintains that objective factors explain the difference in salary. The Bank argues that, although the functions of the employees concerned had IV — The questions submitted by the in principle been classified as equivalent, national court Ms Brunnhofer's male colleague, who acted as an adviser to important clients, also had to enter into binding external commitments, which meant that he had to be invested with authority to act. This was the reason for his higher supplement, 15. Finding that the case required an inter- according to the Bank. In Ms Brunnhofer's pretation of provisions of Community law, case, contact with clients was of secondary the Oberlandesgericht referred the follow- importance. Her male colleague's qualifica- ing questions to the Court by order of tions also justified his somewhat higher 15 June 1999: salary, in the Bank's opinion. He had studied business and had also worked abroad, which meant that he was better qualified to advise clients. The quality of the work was therefore different, in the Bank's opinion. '(l)(a) In assessing whether work is "equal work" or constitutes "same job" within the meaning of Arti- cle 119 (now Article 141) of the EC Treaty or is "the same work" or "work to which equal value is attributed" within the meaning of Directive 75/117/EEC, is it suffi- cient, where individual contracts of 14. The Equal Treatment Commission of employment stipulate supplements the Bundeskanzleramt (Federal Chancel- to pay fixed by collective agree-

A — Questions (l)(a) and (l)(b)

Does this also apply if the classifi- 16. I shall deal below with the first two cation in the job category under parts of the first question together. They

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essentially address two issues which can be Thus, at first sight there is pay discrimina- summarised as follows: tion on grounds of sex, since Ms Brunnho- fer receives ATS 2 000 less supplement per month than her male colleague. For the purpose of answering the question whether there actually is sex discrimination in the matter of pay, it is crucial to determine (1) In the light of the facts set out in the whether the work they do is the same work order for reference, is the work con- or work of equal value. The answer cerned the same work? depends on an assessment of the facts. If the referring court reaches the conclusion that the two employees perform the same work, then it would be obvious that the present case involves prohibited discrimi- nation within the meaning of Article 141 EC. and

(2) On whom does the burden of proving this fact lie?

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BRUXNHOFER

this case, as has already been described important clients). It is also for the national above. The question here, therefore, is court to determine how much importance whether the difference in pay also corre­ must be attached to the fact that sponds to a difference in the work done. If Ms Brunnhofer's male colleague has an there is a difference in pay, this will in authority to act. Does this mean that the principle have to be reflected in different activities are so different as to be capable of activities. If no difference in the activities justifying a difference in pay? can be established, however, the pay ought to be the same, unless the employer shows that the difference in pay can be objectively justified.

2 — Case 129/79 Macartbys | 1 9 8 0 | ECR 1275, paragraph 11. 3 — Case C-400/93 Royal Copenhagen [ 19951 ECR 1-1275 and 4 — Case C-127/92 Endcrby [ 19931 ECR I-5535. Case C-309/97 AnņestelUenbetricbsnU der Wiener Gebret - 5 — Case 109/88 Danfoss | 1 9 8 9 | ECR 3199 and Case 170/84 skrankenkasse | 1 9 9 9 | UCR I-2865, paragraph 17. Bilka [1986] ECR 1607.

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demonstrate that there are grounds which C — The other questions can justify the difference in pay. As can be seen from the order for reference made by the Oberlandesgericht, the information concerning the pay itself is so transparent that there are no evidential difficulties standing in the way of demonstrating a difference in pay. Ms Brunnhofer appears to have shown this sufficiently. To sub- stantiate her claim that unequal pay pro- 22. Questions (1)(c), (2)(a) and (2)(b) are hibited by the relevant Community law all designed to give the referring court exists, however, she will also first have to concrete criteria for answering the question show that the work is the same or of equal whether and, if so, under what conditions, value. The referring court will ultimately an established difference in pay can be have to establish, on the basis of the facts justified in the light of Article 141 EC and and evidence adduced by her, whether the Directive 75/117. case is one of unequal pay not justified by objective differences between the work actually done by Ms Brunnhofer and that actually done by her male comparator.

I infer from the Bilka judgment, 7cited 25. The answer to the second half of this above, that the objective grounds of justi- question is more difficult because it is not fication for such differences in pay must possible to ascertain clearly from the order lend themselves to transparent application, for reference the factual circumstances to that is to say, they must be reducible to which this question relates. The referring objective economic reasons and match the court could be alluding, purely hypotheti- objectives pursued by the undertaking. cally, to a situation in which, although the employees being compared do 'the same work', their levels of performance in carry- ing out that work differ. As the Commis- sion too observes, the order for reference contains no finding or factual description on the basis of which the question can be understood as being anything other than hypothetical. In the absence of more facts, we must fall back on Article 141(2) EC to answer the question whether differences in individual aptitude can justify differences in pay. Under that provision, pay may take 24. By Question (2)(a), the referring court the form of piece rates or time rates. In the asks whether the definition of 'worker' on case of piece rates, Article 141(2)(a) EC which Article 141 EC and Directive 75/117 provides that the same unit of measurement are based is comparable and whether the must be used. Depending on the degree of worker's obligations under the contract of commitment and the individual productiv- employment depend not only on generally ity of the employees concerned, differences defined standards but also on the individual in pay are therefore possible according to personal aptitude of the worker himself. the objectively verifiable results of the The answer to the first part of this question efforts made by the individuals concerned. does not require lengthy observations. It can be seen from the judgment in Jenkins, 8 This is not so in the case of time rates. cited above, and also from those in Article 141(2)(b) EC provides that, if the Kowalska 9and Newstead 10 that Directive work is paid at time rates, the pay must be 75/117 essentially seeks to help achieve the the same for the same job. In view of the principle of equal pay for men and women fact that in the present case the work is paid laid clown in Article 141 EC by facilitating at a time rate, any differences in individual the application of that principle in practice. levels of performance must not result in Given that the aim of the directive is thus differences in pay because the same work is limited to giving practical effect to Arti- being done in the same job. Whether the cle 141 EC, the only possible conclusion is that the core concepts of Article 141 EC and those of the Directive are substantively congruent. This of course also applies to the concept of 'worker'.

(1)(a) When deciding whether work is 'equal work' or constitutes 'the same job' within the meaning of Article 119 of the EC Treaty (Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC) or is 'the same work' or 'work to which equal value is attributed' within the meaning of Council Directive 75/117/EEC of 10 February 1975 on the approxima- tion of the laws of the Member States relating to the application of the principle of equal pay for men and women, it is not sufficient, where

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BRUNNHOFER

supplements to pay fixed by collective agreement are agreed on an individual basis, to ascertain whether the two workers being compared are classified in the same job category under a collective agreement.

(1)(b) Although the same classification under a collective agreement is evidence of the same work or work of equal value within the meaning of Article 119 (now 141) of the Treaty and Directive 75/117, it does not have the result that in the case of direct discrimination the burden of proof lies with the employer to show that the work in question is different.

(1)(c) An employer can rely on circumstances not taken into account in collective agreements in order to justify a difference in pay in so far as they are based on objectively justified grounds.