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C\_2004201EN.01000703.xml


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| 7.8.2004 | EN | Official Journal of the European Union | C 201/7 |

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Action brought on 7 May 2004 by the Commission of the European Communities against the Federal Republic of Germany

(Case C-204/04)

(2004/C 201/14)

An action against the Federal Republic of Germany was brought before the Court of Justice of the European Communities on 7 May 2004 by the Commission of the European Communities, represented by Nicola Yarrell, of the Commission's Legal Service, and Horstpeter Kreppel, a labour court judge appointed to the Commission's Legal Service under the exchange programme for national public servants, acting as Agents, with an address for service in Luxembourg.

The applicant claims that the Court should:

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| 1. | Declare that the Federal Republic of Germany has infringed the principle of equal treatment for men and women laid down under Articles 1, 2 and 5 of Council Directive 76/207/EEC [(1)](#ntr1-C_2004201EN.01000703-E0001), and Clause 4 of the Framework Agreement on part-time work concluded between UNICE, CEEP and the ETUC set out in the Annex to Council Directive 97/81/EC [(2)](#ntr2-C_2004201EN.01000703-E0003), in that it indirectly discriminates against women, who form the great majority of part-time employees working less than 18 hours a week in the German public sector, by excluding, | | | | | | | | | | | | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | | (a) | under Paragraph 14(2) of the Bundespersonalvertretungsgesetz (Federal Law on staff committees in the public sector) and the equivalent regulations applying in the Länder of | | | | --- | --- | | — | Bavaria | | | | | --- | --- | | — | Berlin | | | | | --- | --- | | — | Bremen | | | | | --- | --- | | — | Hesse, | part-time employees who normally work less than 18 hours a week, and | | | | | | | | | | | | | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | | (b) | in the Länder of | | | | --- | --- | | — | Mecklenburg-Western Pomerania | | | | | --- | --- | | — | Saxony | | | | | --- | --- | | — | Schleswig-Holstein | | | | | --- | --- | | — | Thuringia, | part-time employees who work less than half of the normal weekly hours of work, | | | | | | | | | | | | | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | | (c) | in the Länder of | | | | --- | --- | | — | Baden-Württemberg | | | | | --- | --- | | — | Brandenburg | | | | | --- | --- | | — | Rhineland-Palatinate | | | | | --- | --- | | — | Saxony-Anhalt, | part-time employees who work less than one-third of the normal weekly hours of work, | | | | | --- | --- | | (d) | in North Rhine-Westphalia, part-time employees who less than 2/5 of the normal weekly hours of work, | | | | | --- | --- | | (e) | in Lower Saxony, part-time employees who, for a period of up to two months in the course of a year, are employed for less than 15 hours a week, from eligibility for election to staff committees. | |

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| 2. | Order the Federal Republic of Germany to pay the costs. |

Pleas in law and main arguments:

The exclusion from eligibility for election to staff committees, for public sector workers employed by the Federal Republic and almost all Länder, of part-time employees who normally work less than 18 hours a week (the number of hours is somewhat less in certain Länder) constitutes indirect discrimination against women, as they form the great majority of part-time workers. This is accordingly in breach of Directive 76/207/EEC. The rules are also incompatible with Directive 97/81/EC, which provides that part-time workers may not be treated in a less favourable manner than full-time workers unless such different treatment is justified on objective grounds.

However, there are no objective grounds for the exclusion from eligibility for election. The restricted presence of the relevant employees in the workplace could be compensated for by the creation of flexible working time arrangements and modern means of communication. The Betriebsverfassungsgesetz (Law on labour relations at the workplace), which governs elections to works councils in the private sector, does not restrict eligibility for election in the same way. Such works councils perform the same functions as staff committees in the public sector. Representation of the excluded groups is necessary because they have separate interests, which otherwise would not be taken into account.

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[(1)](#ntc1-C_2004201EN.01000703-E0001)  OJ 1976 L 39, p. 40.

[(2)](#ntc2-C_2004201EN.01000703-E0003)  OJ 1998 L 14, p. 9.

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