Opinion of the Advocate General — ECLI:EU:C:2000:9
Date: 2000-01-13
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Denmark

Summary of the Judgment 
1. Social policy — Men and women — Access to employment and working conditions in 
the exercise of activities in a self-employed capacity — Equal treatment — Indirect 
discrimination — Assessment criteria — Separate assessment of each of the key 
conditions governing the exercise of a professional activity — Need for significant data 
(Council Directives 76/207 and 86/613) 
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SUMMARY — CASE C-226/98 
2. Social policy — Men and women •—· Discrimination linked to social protection 
measures adopted by the Member States —• Measures designed to ensure sound 
management of public expenditure — Justification — Conditions 
3. Social policy — Men and women — Equal pay —· Sale price of a medical practice —• 
Treatment as equivalent to a retirement pension for an employed person •—· Not 
included 
1. In order to determine whether indirect 
discrimination on grounds of sex 
exists, Directive 76/207 on the imple­
mentation of the principle of equal 
treatment for men and women as 
regards access to employment, voca­
tional training and promotion, and 
working conditions and Directive 
86/613 on the application of the prin­
ciple of equal treatment between men 
and women engaged in an activity, 
including agriculture, in a self-
employed capacity, and on the protec­
tion of self-employed women during 
pregnancy and motherhood must be 
interpreted as requiring a separate 
assessment to be made of each of the 
key conditions governing the exercise 
of a professional activity laid down in 
specified provisions, in so far as those 
key elements constitute in themselves 
specific measures based on their own 
criteria of application and affecting a 
significant number of persons belong­
ing to a determined category. 
With regard to this latter condition, a 
situation may reveal a prima facie case 
of indirect discrimination only if the 
statistics describing that situation are 
valid, that is to say, if they cover 
enough individuals, do not illustrate 
purely fortuitous or short-term phe­
nomena, and appear, in general, to be 
significant. 
(see paras 33, 36 and operative part 1) 
2. While budgetary considerations can­
not, within the context of social pro­
tection measures adopted by the Mem­
ber States, in themselves justify discri­
mination between workers on grounds 
of sex, measures designed to ensure 
sound management of public expendi­
ture on specialised medical care and to 
guarantee people's access to such care 
may be justified if they meet a legit­
imate objective of social policy, are 
appropriate to attain that objective, 
and are necessary to that end. 
(see para. 42 and operative part 2) 
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JØRGENSEN 
3. The price which a doctor may receive 
for goodwill when he or she ceases 
activity on reaching retirement age 
cannot, in an assessment as to whether 
there is discrimination between work­
ers based on sex, be treated as equiva­
lent to the retirement pension of an 
employed worker. The transfer of 
goodwill, which is an incorporeal ele­
ment of a medical practice, is not 
necessarily linked to the age of the 
transferor and may occur at any time, 
whereas a pension is obtained only at a 
certain age and subject to a certain 
period of activity and payment of a 
specific amount of contributions. Fur­
thermore, it is the person taking over 
the practice who pays the purchase 
price and not those who normally 
provide the doctor's remuneration, 
whether these be his or her patients, 
the State, or the health insurance body. 
(see paras 45-46 and operative part 3) 
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