Opinion of the Advocate General — ECLI:EU:C:2012:762
Date: 2012-11-29
Language of the case: English
Subject matter: Principles, objectives and tasks of the Treaties;Social Policy
Procedure: Reference for a preliminary ruling
Origin: Ireland

Summary — Judgment of the Court (Third Chamber), 28 February 2013 1. Social policy — Male and female workers — Equal pay — Burden of proof in cases of discrimination (Art. 141 EC; Council Directive 75/117) 2. Social policy — Male and female workers — Equal pay — Workers performing the same work or work to which equal value is attributed — Criteria for assessment — Burden of proof in cases of discrimination — Justification of a difference in pay — Criteria for assessment (Art. 141 EC; Council Directive 75/117) 1. In accordance with the normal rules of evidence, it is, in principle, for the worker who believes himself to be the victim of sex discrimination in pay to establish before the national court that the conditions giving rise to a presumption that there is unequal pay prohibited by Article 141 EC and Directive 75/117 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women are fulfilled. It is accordingly for that worker to prove by any form of allowable evidence that the pay he receives from his employer is less than that of his chosen comparators, and that he does the same work or work of equal value, comparable to that performed by his comparators, so that prima facie he is the victim of discrimination which can be explained only by the difference in sex. If the worker adduced evidence to show that the criteria for establishing the existence of a difference in pay between a woman and a man and for identifying comparable work are satisfied, a prima facie case of discrimination would exist. It would then be for the employer to prove that there was no breach of the principle of equal pay by establishing by any legal means, inter alia, that the activities actually performed by the two employees were not in fact comparable or by justifying the difference in pay by objective factors unrelated to any discrimination based on sex. In that regard, professional training is not merely one of the factors that may be an objective justification for giving different pay for doing the same work; it is also one of the possible criteria for determining whether or not the same work is being performed. (see paras 18-20, 29) 2. Article 141 EC and Directive 75/117 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women must be interpreted as follows: – employees perform the same work or work to which equal value can be attributed if, taking account of a number of factors such as the nature of the work, the training requirements and the working conditions, those persons can be considered to be in a comparable situation, which it is a matter for the national court to ascertain; – in relation to indirect pay discrimination, it is for the employer to establish objective justification for the difference in pay between the workers who consider that they have been discriminated against and the comparators; – the employer’s justification for the difference in pay, which is evidence of a prima facie case of gender discrimination, must relate to the comparators who, on account of the fact that their situation is described by valid statistics which cover enough individuals, do not illustrate purely fortuitous or short-term phenomena, and which, in general, appear to be significant, have been taken into account by the referring court in establishing that difference, and – the interests of good industrial relations cannot therefore, of themselves, constitute the only basis justifying such discrimination between male and female workers in terms of pay. Those interests may be taken into consideration by the national court as one factor among others in its assessment of whether differences between the pay of two groups of workers are due to objective factors unrelated to any discrimination on grounds of sex and are compatible with the principle of proportionality. It is for the national court, which alone has jurisdiction to find and assess the facts, to determine to what extent those concerns may be taken into consideration in the case before it to justify a prima facie case of indirect gender discrimination in pay. (see paras 27, 31, 41, 45, 48, 50-52, operative part)