# C_2005106EN.01000101.xml

| 30.4.2005 | EN | Official Journal of the European Union | C 106/1 |
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30.4.2005

EN

Official Journal of the European Union

C 106/1

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JUDGMENT OF THE COURT

JUDGMENT OF THE COURT

(First Chamber)

of 10 March 2005

in Case C-196/02 (reference for a preliminary ruling from the Irinodikio Athinon): Vasiliki Nikoloudi v Organismos Tilepikinonion Ellados AE (1)

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(Social policy - Male and female workers - Article 119 of the EC Treaty (Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC) - Directive 75/117/EEC - Equal pay - Directive 76/207/EEC - Equal treatment - Temporary part-time posts - Exclusion from appointment as an established member of staff - Calculation of length of service - Burden of proof)

(2005/C 106/01)

Language of the case: Greek

In Case C-196/02: reference for a preliminary ruling under Article 234 EC from the Irinodikio Athinon (Greece), made by decision of 13 May 2002, received at the Court on 27 May 2002, in the proceedings between Vasiliki Nikoloudi and Organismos Tilepikinonion Ellados AE — the Court (First Chamber), composed of P. Jann, President of the Chamber, A. Rosas (Rapporteur), A. La Pergola, S. von Bahr and K. Schiemann, Judges; C. Stix-Hackl, Advocate General; R. Grass, Registrar, gave a judgment on 10 March 2005, the operative part of which is as follows:

| 1. | Community law, in particular Article 119 of the EC Treaty (Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC) and Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, is to be interpreted as meaning that the existence and application of a provision such as Article 24a(2)(a) of the General Staff Regulations of Organismos Tilepikinonion Ellados, under which only female cleaners, and therefore only women, can be taken on under a contract of indefinite duration for part-time work, do not constitute, in themselves, direct discrimination on grounds of sex against women. However, the subsequent exclusion of a possibility of appointment as an established member of staff by reference, ostensibly neutral as to the worker's sex, to a category of workers which, under national rules having the force of law, is composed exclusively of women constitutes direct discrimination on grounds of sex within the meaning of Directive 76/207. In order for there to be no direct discrimination on grounds of sex, the factor characterising the category to which the excluded worker belongs must be such as to place that worker in a situation that is objectively different, with regard to appointment as an established member of staff, from the situation of those who are eligible to become established. |
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1.

Community law, in particular Article 119 of the EC Treaty (Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC) and Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, is to be interpreted as meaning that the existence and application of a provision such as Article 24a(2)(a) of the General Staff Regulations of Organismos Tilepikinonion Ellados, under which only female cleaners, and therefore only women, can be taken on under a contract of indefinite duration for part-time work, do not constitute, in themselves, direct discrimination on grounds of sex against women. However, the subsequent exclusion of a possibility of appointment as an established member of staff by reference, ostensibly neutral as to the worker's sex, to a category of workers which, under national rules having the force of law, is composed exclusively of women constitutes direct discrimination on grounds of sex within the meaning of Directive 76/207. In order for there to be no direct discrimination on grounds of sex, the factor characterising the category to which the excluded worker belongs must be such as to place that worker in a situation that is objectively different, with regard to appointment as an established member of staff, from the situation of those who are eligible to become established.

| 2. | Should the premiss that only part-time female cleaners have been denied the possibility of appointment as an established member of staff prove incorrect, and if a much higher percentage of women than men has been affected by the provisions of the specific collective agreements of 2 November 1987 and 10 May 1991, the exclusion, brought about by those agreements, of the appointment of part-time temporary staff as established staff constitutes indirect discrimination. Such a situation is contrary to Article 3 of Directive 76/207 unless the difference of treatment between these workers and those working full-time is justified by factors unrelated to any discrimination on grounds of sex. It is for the national court to determine whether that is the case. |
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2.

Should the premiss that only part-time female cleaners have been denied the possibility of appointment as an established member of staff prove incorrect, and if a much higher percentage of women than men has been affected by the provisions of the specific collective agreements of 2 November 1987 and 10 May 1991, the exclusion, brought about by those agreements, of the appointment of part-time temporary staff as established staff constitutes indirect discrimination. Such a situation is contrary to Article 3 of Directive 76/207 unless the difference of treatment between these workers and those working full-time is justified by factors unrelated to any discrimination on grounds of sex. It is for the national court to determine whether that is the case.

| 3. | Where the total exclusion of part-time employment when calculating length of service affects a much higher percentage of female workers than male workers, it constitutes indirect discrimination on grounds of sex contrary to Directive 76/207, unless that exclusion is attributable to factors which are objectively justified and are unrelated to any discrimination on grounds of sex. It is for the national court to determine whether that is the case. The proportional counting of part-time employment when making that calculation is also contrary to Directive 76/207, unless the employer establishes that it is justified by factors whose objectivity depends in particular on the aim pursued by taking length of service into account and, should it be a question of recognition of experience acquired, on the relationship between the nature of the duties carried out and the experience which performance of those duties brings after a certain number of hours of work have been completed. |
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3.

Where the total exclusion of part-time employment when calculating length of service affects a much higher percentage of female workers than male workers, it constitutes indirect discrimination on grounds of sex contrary to Directive 76/207, unless that exclusion is attributable to factors which are objectively justified and are unrelated to any discrimination on grounds of sex. It is for the national court to determine whether that is the case. The proportional counting of part-time employment when making that calculation is also contrary to Directive 76/207, unless the employer establishes that it is justified by factors whose objectivity depends in particular on the aim pursued by taking length of service into account and, should it be a question of recognition of experience acquired, on the relationship between the nature of the duties carried out and the experience which performance of those duties brings after a certain number of hours of work have been completed.

| 4. | Where employees plead that the principle of equal treatment has been infringed to their detriment and establish facts from which it may be presumed that there has been direct or indirect discrimination, Community law, in particular Council Directive 97/80/EC of 15 December 1997 on the burden of proof in cases of discrimination based on sex, is to be interpreted as meaning that it shall be for the respondent to prove that there has been no breach of that principle. |
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4.

Where employees plead that the principle of equal treatment has been infringed to their detriment and establish facts from which it may be presumed that there has been direct or indirect discrimination, Community law, in particular Council Directive 97/80/EC of 15 December 1997 on the burden of proof in cases of discrimination based on sex, is to be interpreted as meaning that it shall be for the respondent to prove that there has been no breach of that principle.

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(1)  OJ C 169 of 13.07.2002.

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