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2. For the purpose of this Article, "pay" means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the 1 — Original language: Italian. worker receives directly or indirectly, in 2 — Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to respect of his employment, from his the application of the principle of equal pay for men and employer. women (OJ 1975 L 45, p. 19, 'Directive 75/117'). 3 — Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men ana women as regards access to employment, vocational training and promotion and working conditions (OJ 1976 L 39, p. 40, 'Directive 76/207'). 4 — Council Directive 97/81/EC of 15 December 1997 concern- ing the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC (OJ 1998 L 14, p. 9, ..." 'Directive 97/81').

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3. Article 1 of Directive 75/117 provides ciple of equal treatment for men and that: women as regards access to employment, including promotion, and to vocational training and as regards working conditions and, on the conditions referred to in paragraph 2, social security. This principle is hereinafter referred to as "the principle of equal treatment."

'The principle of equal pay for men and women outlined in Article 119 (now 141 EC) of the Treaty, hereinafter called "principle of equal pay", means, for the same work or for work to which equal value is attributed, the elimination of all discrimination on grounds of sex with regard to all aspects and conditions of remuneration. 5. Article 2 of the same directive provides that:

OPINION OF MR TIZZANO — CASE C-77/02

ditions, including the conditions governing full-time workers solely because they work dismissal, means that men and women shall part time unless different treatment is be guaranteed the same conditions without justified on objective grounds. discrimination on grounds of sex.

...'

4. Where justified by objective reasons, 7. Under Article 1 of Directive 97/81: Member States after consultation of the social partners in accordance with national law, collective agreements or practice and/or social partners may, where appro- priate, make access to particular conditions of employment subject to a period of service, time worked or earnings qualifi- 'The purpose of this Directive is to imple- cation....' ment the Framework Agreement on part- time work concluded on 6 June 1997 between the general cross-industry organi- sations... annexed hereto.'

B — National legislation

8. Clause 4 of the Annex to that directive provides that:

10. Admission to such working arrange- ments was subject to four conditions: 12. As regards pensions, moreover, (a) that the employee should be aged 55 Paragraph 6(1 )(3) of the Gesetz über die or over; (b) that he should have worked Versorgung der Beamten und Richter in full-time for a total of at least three of the Bund und Ländern (Law on the pensions of last five years before admission to the public servants and judges in the Bund and scheme; (c) that part-time working should the Länder, 'the BeamtVG'), in the version begin before 1 August 2004; and (d) that in force before 1 July 2000, provided that there should be no overriding work-related during the period for which the employ- reasons why the employee ought not to be ment scheme in question was in force the admitted to the scheme. employee should acquire 90% of the pen- sion rights of a full-time worker, in dero- gation from the rule that the pension rights of a part-time worker accrue in proportion to the hours actually worked.

11. In order to encourage applications for admission to the scheme, employees who took advantage of it were granted certain salary and pension benefits. In particular, 13. While these proceedings have been Paragraph 2(1) of the Verordnung über die pending, the disputed legislation has been Gewährung eines Zuschlags bei Altersteil- amended with effect from 1 July 2000 by zeit (Regulation concerning the grant of a the Gesetz über die Anpassung von Dienst pay supplement in the case to part-time und Versorgungsbezügen in Bund und work for older employees 'the ATZV), in Ländern (Law on the adjustment of salaries the version in force before 1 July 2000, and pensions in the Bund and Länder).

18. On 30 June 1999 the applicant applied to the Federal Employment Office to be accorded part-time status on grounds of old age pursuant to Paragraph 72b of the BBG 16. Finally, the version of Paragraph 6(1)(3) for the period from 1 October 1999 to of the BeamtVG in force since 1 July 2000 30 September 2007 (the date on which the lays down that during the period of appli- applicant intended to retire), stating that cation of the employment scheme in ques- she opted for the block model, with a tion the worker should acquire pension period of working hours equivalent to rights commensurate with 90% of the those worked up to that time from working hours taken into consideration 1 October 1999 until 30 September 2003 for calculating the reduction in working followed by a work-free period from hours. 1 October 2003 until 30 September 2007.

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19. On 12 July 1999 Ms Steinicke's appli- from 1 July 2000; the dispute therefore cation was turned down because she had ceased as regards the period after that date. not worked full-time for a total of at least However, Ms Steinicke pursues her three of the last five years, as required by demand for annulment of the contested the version of Paragraph 72b of the BBG orders refusing her that status for the then in force. period between 1 October 1999 and 30 June 2000.

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admission to a part-time employment market would not be equivalent to those scheme with a view to retirement subject that could be achieved by allowing full- to the condition that the worker should time workers to join. Indeed, as part-time have worked full-time for at least three of workers are already working part-time, the last five years infringe the principle of they would not free appreciable working equal treatment for men and women laid time in the labour market. down in Article 141 EC and Directives 75/117 and 76/207 and the principle of equal treatment of part-time and full-time workers under Directive 97/81.

25. Ms Steinicke, the Commission and the Portuguese Government agree that the reply to the question should be in the 2 8 . As to budgetary considerations, the affirmative and dispute the opposite view Office states that, since workers admitted put forward by the Federal Labour Office, to the scheme enjoy special benefits in which is the defendant in the main proceed- terms of salary and social security, it would ings but has not appeared before the Court. be excessively costly to open up the scheme to part-time workers as well.

32. For its part, the Commission points out first that because the financial advantages provided for under the scheme in question are only incentives aimed at attaining the employment policy objectives, the scheme does not fall within the concept of 'pay' laid down in Article 141 EC or Article 1 of 30. Ms Steinicke challenges these argu- Directive 75/117 but within that of 'work- ments. First, in her opinion it is not true ing conditions' set out in Article 5 of that admitting part-time workers to the Directive 76/207. It goes on to observe scheme in question makes it impossible to that, on the basis of the statistics mentioned have a positive effect on the labour market. by the national court, the exclusion of Furthermore, she contends that the argu- part-time workers from the scheme in ment regarding the problems of planning question constitutes prima facie indirect and allocating posts resulting from the discrimination on grounds of sex which, for admission of part-time workers to such a the reasons which I shall set out below, is scheme is also unfounded because such not justified in the light of the Court's problems also arise when full-time workers case-law. are admitted to the scheme. Nor, last, is it correct, in her view, to claim that the discrimination created by the provisions in question is justified on financial grounds, given that part-time workers help to reduce costs and to free the labour market. 33. As to an assessment of the debate that I have just summarised, it seems to me first of all above that I can agree with the Commission as to the need to identify first the Community law applicable in the present case.

5 — The employment scheme discussed in that case was 6 — Council Directive 79/7/EEC of 19 December 1978 on the governed by the Altersteilzeitgesetz (Law on part-time progressive implementation of the principle of equal treat- employment on grounds of old age) of 23 July 1996. Under ment for men and women in matters of social security that law, workers aged 55 or more can apply, on the basis of (OJ 1979 L 6, p. 24, hereinafter 'Directive 79/7'). an agreement with the employer, to be allowed to work part-time in accordance with the traditional formula or 7 —Opinionin Case C-187/00 [2003] ECR I-2741, under a 'block model' formula. To encourage recourse to paragraph 38. the scheme, the law provides that workers admitted to the 8 — Judgment in Case C-187/00 Kutz-Bauer v Freie und scheme, despite working part-time, are entitled to a salary Hansestadt Hamburg [2003] ECR I-2741, paragraphs 43 equal to 70% of the net full-time salary. to 46.

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41. There seems to me to be no doubt that, 43. That having been said, I must also by preventing a large proportion of part- point out, however, that according to time workers from joining the employment established case-law where a national arrangements in question, this measure measure works to the disadvantage of a clearly led to unequal treatment to the much higher percentage of women than detriment of such workers and that there- men, as in the case in point, it entails a fore as a matter of principle it is incom- discrimination against women prohibited patible with Directive 97/81. by Community law, specifically by Direc- tive 76/207, only if that difference in treatment cannot be justified by objective 9 — This directive is applicable only in part to the present case. as the period tor its transposition into national law expired on 20 January 2000, whereas the period on which the court of reference has to rule runs from 1 October 1999 to 30 June 12 — J u d g m e n tin Case C-322/98 Kachelmann v Bankhaus 2000. Hermann Lampe |2000] ECR I-7505, paragraph 24. See- also to that effect the Opinion of Advocate General 10 — See Clause 4 of the Annex to that directive. Geelhoed in Case C-25/02 Rinke v Ärtzekammer Hamburg 11 — See Clause 2 of the Annex to that directive. [2003] ECR I-8349.

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factors unrelated to any discrimination on 46. In this regard, I would recall that 'it is grounds of sex. 13 settled law that although in preliminary- ruling proceedings it is for the national court to establish whether such objective factors exist in the particular case before it, the Court of Justice, which has to provide answers of use to the national court, may 44. Similarly, Directive 97/81 does not provide guidance based on the documents prohibit differences in treatment to the before the national court and on the detriment of part-time workers that are written and oral observations which have 'justified on objective grounds'. 14 been submitted to it, in order to enable the national court to give judgment'. 15

13 — Thar principle was stated by the Court with specific reference to Directive 76/207 in a number of judgments, including in particular those in Cases C-1/95 Gerster v Freistaat Bayern [1997] ECR I-5253, paragraphs 30 and 34 (which contain further references), C-226/98 Jørgensen [20001 ECR I-2447, paragraph 29 (which contains further r e f e r e n c e s ) , C - 3 2 2 / 9 8 Kachelmann, cited a b o v e , paragraph 2 3 , and C-187/00 Kutz-Bauer, cited above, paragraph 50. It was also stated with reference to Article 141 EC and/or Directive 75/117 in, inter alia, the 48. As I have noted above, the first is based judgments in Cases C-243/95 Hill and Stapleton v The Revenue Commissioners and Department of Finance on the consideration that by allowing full- [1998] ECR I-3739, paragraph 34, C-167/97 Seymour- Smith and Perez [1999] ECR I-623, paragraph 69, and time workers to halve their working hours, C-249/97 Gruber v Silhouette International Schmied the scheme in question pursued employ- [19991 ECR I-5295, paragraphs 25 and 26; also, with reference to Directive 79/7, in, inter alia, Cases C-33/89 ment policy objectives that could not Kowalska v Freie und Hansestadt ECR I-2591, paragraph 16, C-229/89 Commission Hamburg [1990] v otherwise be pursued — or would be pur- Belgium [1991] ECR I-2205, paragraph 13, C-343/92 sued less effectively — if part-time Roks and Others [1994] ECR I-571, paragraph 3 3 , and C-444/93 Megner and Scheffel v Innungskrankenkasse workers were also permitted to join the Rheinhessen-Pfalz [1995] ECR I-4741, paragraph 24. The same principle has now also been codified in a number of scheme. directives: see Council Directive 97/80/EC of 15 December 1997 on the burden of proof in cases of discrimination based on sex (OJ 1998 L 14, p. 6), or Council Directive 2000/78/EC of 2 7 November 2000 establishing a general 15 — Judgment in Case C-278/93 Freers and Speckmann v framework for equal treatment in employment and Deutsche Bundespost [1996] ECR I-1165, paragraph 24; occupation (OJ 2000 L 303, p. 16), or again Directive see also to that effect the judgments in Seymour-Smith and 2002/73/EC of the European Parliament and of the Perez, cited above, paragraphs 67 and 68, Case C-381/99 Council of 23 September 2002 amending Council Direc- Brunnhofer v Bank der österreichischen Postsparkasse tive 76/207/EEC (OJ 2002 L 269, p. 15). [2001] ECR I-4961, paragraph 65, and Kutz-Bauer, cited 14 — Clause 4 of the Annex to Directive 97/81. above, paragraph 52.

51. Furthermore, that the regulations in question discouraged part-time working seems in my opinion to be demonstrated both by the fact that Ms Steinicke, with the 54. To rebut the relevance of that argument intention of benefiting from the arrange- it is sufficient, for present purposes, to ments in question, had asked her employer recall the settled case-law of the Court, to allow her to transfer from part-time according to which 'budgetary consider- working to full-time working and by the ations... cannot... justify discrimination fact that the new version of Paragraph 72b against one of the sexes'. 17 of the BBG in force from 1 July 2000 17 — See the judgments in Roks and Others, cited above, paragraphs 35 and 36, Hill and Stapleton, cited above, 16—Judgment in Seymour-Smith and Perez, cited above, paragraph 40, Case C-104/98 Buchner and Others v paragraph 69; the italics are mine. See also the judgments Sozialversicherungsanstalt der Bauern [2000] ECR I-3625, in Megner and Scheffel, cited above, paragraphs 29 and paragraph 28, and Kutz-Bauer, cited above, paragraphs 59 30, and Freers and Speckmann, cited above, paragraph 28. to 61.

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55. Finally, I also consider the last argu- absence of objective justification, it is ment adduced by the Federal Labour Office contrary to Directive 97/81 and — where to be unfounded, that is to say, the fact that there are many more women than men admitting a part-time worker to the among part-time public servants — Direc- employment scheme in question would tive 76/207 for a measure of national law have caused the employer serious problems to provide that a part-time employment in the planning and allocation of work. scheme with a view to retirement may be granted only to public servants who have been employed full-time for a total of at least three of the previous five years.

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IV — Conclusion

61. In the light of the above considerations, I therefore suggest that the Court reply as follows to the question submitted to it by the Verwaltungsgericht Sigmaringen by order of 10 December 2001:

'In the absence of objective justification, it is contrary to Council Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC and — if many more women than men are employed part-time — Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment fői­ men and women as regards access to employment, vocational training and promotion, and working conditions, for a measure of national law to provide that a part-time employment scheme with a view to retirement may be granted only to public servants who have been employed full-time for a total of at least three of the previous five years'.

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