Opinion of the Advocate General — ECLI:EU:C:2004:308
Date: 2004-05-18
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary of the arguments submitted 102. The referring court, Ms Wippel and the Austrian Government are essentially arguing that, as a result of work being done on demand without working time being stipulated in advance, the commercial risk is transferred from the employer to the employee, a permanent bargaining position is created between the two parties and the amount and positioning of working time is left entirely to the discretion of the employer. 103. In her written and oral observations Ms Wippel also points out the possible social consequences of the chosen contractual arrangement: if staff available on demand were not used for some time this could be used as a means of reducing liability for holiday pay, sick pay, maternity pay and redundancy payments (so-called ‘termination payments’) to almost nothing at all. If absolutely nothing is paid during a particular salary period, the worker also has to be de-registered from the local health insurance fund. The contractual arrangement of work on demand also enables the employer to avoid statutory protection against dismissal. 104. P&C contends that the concept of work on demand is extremely popular amongst its staff and is also strongly advocated by its staff representative body (works council). The amount of time worked is determined by agreement in each individual case according to expected sales or workload, on the one hand, and the wishes of the employees, on the other. The advantages and disadvantages of such an arrangement were expressly pointed out to the claimant. It was also expressly stated that the framework contract did not guarantee the claimant any income and that she was free to refuse job placements in individual cases without being prejudiced for doing so. Nor did the claimant have to be on call at any time. Staff available on demand were entitled to 30 working days’ paid holiday a year, to additional payments under the collective agreement and to statutory termination payments and sick pay. Staff available on demand were also covered by the social insurance scheme. There could not therefore be any question of an immoral shifting of corporate responsibility onto the employee. b) Interpretation of the prohibition of discrimination 105. The prohibition of less favourable treatment of part-time workers under clause 4(1) of the Framework Agreement on part-time work must be interpreted and applied in the light of its overall context and of the meaning and objective of this provision. (66) i) No general discrimination against part-time workers 106. Although a contractual arrangement that does not provide for fixed working hours agreed in advance does have a detrimental effect on those employees who are to a certain extent reliant on a regular income or to whom it is important that their job placements be determined in advance, that same contractual arrangement can nevertheless be beneficial to employees who are only able or willing to work irregular hours and in varying amounts or who are just looking to top up their earnings. (67) The positive attitude towards the concept of work on demand displayed by P&C’s works council, as its elected staff representative body, can be considered further indication that such a contractual arrangement does not unilaterally advantage the employer and disadvantage the employee. 107. In the light of the foregoing a contractual arrangement without fixed working time agreed in advance cannot generally be deemed disadvantageous to part-time workers. This would be contrary to the objectives of flexible organisation of working time and the promotion of employment on which the Framework Agreement on part-time work is based and would not adequately take into account the interests of certain workers. (68) ii) Proper social protection and prohibition of misuse 108. However, when interpreting and applying the prohibition on discrimination in an individual case, the objective of proper social protection, (69) in particular proper regard for the interests of employees, should not be overlooked. 109. Firstly, that objective requires the employer to ascertain, when taking on an employee, whether he or she has been made sufficiently aware of the pros and cons of a contractual arrangement without fixed working time being agreed in advance and whether this arrangement is in his or her interests. If necessary, it must provide him or her with reasonable clarification on this point. In the present case Ms Wippel was indisputably given a detailed explanation before she was taken on and she herself said that she was not reliant upon a regular income. In general, according to its own undisputed submissions, P&C used the pattern of work on demand only in relation to staff who were not reliant upon a regular income. 110. Secondly, it is possible to construe from the objective of proper social protection a prohibition on misuse (or abuse) covering the whole duration of the employment relationship. If the employer under a system of work on demand should therefore fail, in an abusive manner, to offer an employee work, this could have the social consequences described by Ms Wippel, such as in relation to the existence or computation of certain entitlements linked to the employment relationship like holiday pay, sick pay, maternity pay or medical insurance protection. Abuse of this kind might be established, for example, if – against their will and for no objective reason – work were to be offered to certain employees but not to others, or only offered to a much lesser extent. 111. Nevertheless it cannot be concluded from the purely abstract risk of misuse by an employer that a contractual arrangement without fixed working hours being agreed in advance does in general have a discriminatory effect on part-time workers. An abusive failure to offer work in a particular case would have to be assessed in exactly the same way as any other abusive conduct on the part of an employer during the course of an employment relationship and could be subject to the penalties imposed for that purpose under the national employment law in question. (70) The Member States and their judiciaries therefore retain wide discretion in this respect under the Framework Agreement on part-time work. Misuse or abuse can lead, for example, to claims in damages, injunctions and other claims on the part of the employee according to the formulation of the national law concerned. 112. It is for the referring court to ascertain that no such abuse occurred in the particular case pending before it; in any event, Ms Wippel has not argued in the proceedings before the Court that this was the case. c) Interim conclusion 113. For the reasons stated it does not constitute unlawful discrimination against part-time workers under Clause 4(1) of the Framework Agreement on part-time work if a framework contract of employment does not make provision for fixed working hours agreed in advance, unless the employee was not sufficiently aware of the advantages and disadvantages of that contractual arrangement or the employer subsequently fails, in an abusive manner, to offer work to the employee. 2. Prohibition of discrimination on grounds of sex 114. It is now necessary to consider whether the pattern of work on demand without fixed working hours being agreed in advance, as used by P&C, leads to discrimination on grounds of sex within the meaning of Article 5(1) of Directive 76/207. 115. This pattern of working is formulated in a manner that is gender neutral; work on demand is available to employees of both sexes. According to established case‑law, however, provisions which, although worded in neutral terms, work to the disadvantage of a much higher percentage of members of one sex constitute indirect discrimination unless that difference in treatment is justified by objective factors unrelated to any discrimination on grounds of sex. (71) a) Absence of discrimination against women 116. The mere finding that the proportion of women in a quite specific group – considered in isolation – for example, the group of persons employed on demand, is considerably higher than the proportion of men is not sufficient to create the presumption of sex discrimination against women. The concept of discrimination requires that a comparison be drawn with other groups of workers in the same establishment. 117. In its written observations P&C has stated, without any contention, that in its establishment 84.84% of workers employed on demand are women, whilst the proportion of women amongst full-time and part-time workers with fixed working hours is 75.82%. P&C also stated during the oral procedure, in answer to an enquiry, that the proportion of full-time workers who are female – considered in isolation – is approximately 65% whilst the proportion of part-time workers who are female – both part-timers with fixed working hours and part-timers working on demand – is approximately 85%. (72) 118. It is for the national court to assess whether statistical data such as these are meaningful. (73) The Court of Justice, which is called on to provide answers of use to the referring court, may nevertheless provide it with guidance in order to enable it to give judgment. 119. The proportion of women amongst employees working on demand is virtually the same as the proportion of women who are part-time workers with fixed working hours – that is to say, approximately 84%-85%. If one compares part-time staff employed on demand with full-time and part-time workers with fixed working hours, the proportion of female employees amongst those working on demand is approximately ten percentage points higher (84.84% compared to 75.82%). A comparison of all part-time staff with full-time staff leads to the following result: although female employees also constitute the overwhelming majority of full-time staff, the proportion of women – at approximately 65% – is approximately 20 percentage points lower than in the case of part-time staff. 120. These figures show that there is a constantly high proportion of P&C employees who are of the female sex. Any contractual arrangement chosen by P&C (whether full-time employment, part-time employment with fixed working hours or work on demand) therefore has an especially great impact on women. 121. Since the problem raised in the present case principally concerns the absence of fixed working hours agreed in advance, particular significance is to be attached to the comparison between employees with fixed working hours (whether employed part-time or full-time) and those without fixed working hours. The difference in the proportion of women in these two groups is only approximately 10 percentage points. In Seymour-Smith and Perez the Court of Justice considered such a difference to be insignificant. (74) In the light of the foregoing I take the view that there cannot be any question of unequal treatment based on sex if fixed working hours are applied at P&C to full-time and certain part-time workers but not to those working on demand. 122. General principle: if a contractual arrangement without fixed working hours agreed in advance does not have a considerably greater impact on workers of one sex than other contractual arrangements, this does not constitute unlawful discrimination on grounds of sex within the meaning of Article 5(1) of Directive 76/207. b) Alternatively: justification 123. Even if the referring court should come to the conclusion that the contractual arrangement of work on demand within P&C’s establishment does have a considerably greater impact on women than other contractual arrangements and therefore leads to unequal treatment based on sex, it would still be necessary to examine whether that unequal treatment is justified by objective factors unrelated to any discrimination on grounds of sex. 124. As already stated, the particular concept of work on demand in question here cannot be considered generally disadvantageous to the parties involved. (75) There could be particular objective factors that favour a flexible contractual arrangement, such as the wishes of the employees themselves to work irregular hours and in varying amounts. In that eventuality, refraining from agreeing fixed working hours in advance is not tantamount to (indirect) discrimination based on sex. 125. The particular circumstances of the case might nevertheless be construed differently if employees of one sex were to be much more affected by working on demand than by other contractual arrangements and if the advantages and disadvantages were not adequately explained when they were taken on. In such cases, in particular, there would be a considerable risk of the agreed conditions of employment, on an objective consideration, not fulfilling the interests of the parties concerned so that they would be in breach of the prohibition on discrimination. The same might be assumed if those employees were not, in an abusive manner, to be offered work during the continuation of their employment relationship. (76) G – Question 4: compensation for any discrimination 126. By its fourth question the referring court essentially wishes to establish how financial compensation is to be made for any discrimination. 127. If the second and third questions should be answered as recommended above there will be no need to answer the fourth question. VI – Conclusion 128. In the light of the foregoing considerations it is recommended that the questions referred to the Court by the Austrian Oberster Gerichtshof should be answered as follows: (1) The Community Charter of the Fundamental Social Rights of Workers, which was adopted at the meeting of the European Council in Strasbourg on 9 December 1989, is not legally binding. However, reference is to be made to it as an aid to interpretation of the provisions of Community law. (2) Under Article 141 EC, Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women, 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, and the Community Charter of the Fundamental Social Rights of Workers, the concept of ‘worker’ in any event encompasses any person who performs services for and under the direction of another person in return for which he or she receives remuneration, unless those services do not constitute activities which are effective and genuine or are activities on such a small scale as to be regarded as purely marginal and ancillary. It does not depend upon whether fixed working hours are agreed in advance. The concept of ‘worker’ within the meaning of Clause 2(1) of the Annex 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 is to be defined having regard to the laws, collective agreements and practices in force in each Member State. (3) Legislation such as the Austrian Arbeitszeitgesetz which does not contain any statutory provision – even of subsidiary application – on the amount and positioning of working time for part-time workers does not constitute unlawful discrimination against part-time workers within the meaning of Clause 4(1) of the Annex to Directive 97/81 nor does it constitute unlawful discrimination on grounds of sex within the meaning of Article 5(1) of Directive 76/207. (4) If a framework contract of employment does not make provision for fixed working hours agreed in advance this does not constitute unlawful discrimination against part-time workers within the meaning of Clause 4(1) of the Annex to Directive 97/81 unless the employee was not sufficiently aware of the advantages and disadvantages of that contractual arrangement or the employer subsequently fails, in an abusive manner, to offer work to the employee. If a contractual arrangement without fixed working hours agreed in advance does not have a much greater impact on employees of one sex than other contractual arrangements, this does not lead to unlawful discrimination on grounds of sex within the meaning of Article 5(1) of Directive 76/207. 1 – Original language: German. 2 – OJ 1975 L 45, p. 19. 3 – OJ 1976 L 39, p. 40. 4 – Article 5(1) of Directive 76/207 has since been replaced by Article 3(1)(c) of that Directive, as amended. The new version came into force on 5 October 2002 pursuant to Article 3 of Directive 2002/73/EC of the European Parliament and of the Council of 23 September 2002 amending Directive 76/207 (OJ 2002 L 269, p. 15). The time-limit for transposition of the amendments is 5 October 2005. 5 – OJ 1998 L 14, p. 9 (corrigendum in OJ 1998 L 128, p. 71). 6 – It was published in the Official Journal on 20 January 1998. 7 – Published in Commission document COM (89) 471 of 2 October 1989. 8 – BGBl. 1994 I, p. 1170. 9 – See the judgments in Case C-415/93 Bosman [1995] ECR I-4921, paragraphs 59 to 61, Case C‑230/96 Cabour [1998] ECR I-2055, paragraph 21, Case C-281/98 Angonese [2000] ECR I‑4139, paragraph 18, and Joined Cases C-480/00, C-481/00, C-482/00, C-484/00, C-489/00, C‑490/00, C-491/00, C-497/00, C-498/00 and C-499/00 Ribaldi [2004] ECR I‑0000, paragraph 72. 10 – Directives 76/207 and 97/81 are of particular relevance in this context. 11 – See, with regard to the principle of interpretation in conformity with directives under the third paragraph of Article 249 EC in conjunction with Article 10 EC, the judgment in Case C-91/92 Faccini Dori [1994] ECR I-3325, paragraphs 19 to 26, and the case-law cited there. 12 – This declaration was adopted by the Heads of State or Government of eleven of the then twelve Member States and has not been published in the Official Journal; see the conclusions drawn by the Presidency at Bull. EC 12-1989 pt. 1.1.10. 13 – See also Article 4 EU which, although it had not yet come into force in 1989, can nevertheless be deemed a statement of the role of the European Council and the Heads of State or Government of the Member States represented on it before the Treaty on European Union was adopted. 14 – Advocate General Jacobs also ultimately concludes that the Charter is not binding in his Joined Opinions in Cases C-67/96, C-115/97 to C-117/97 and C-219/97 Albany and Others [1999] ECR I-5751, I-5754, paragraph 137. 15 – Judgment in Case C-151/02 Jaeger [2003] ECR I‑0000, paragraph 47, and similarly the judgment in Case C-173/99 BECTU [2001] ECR I-4881, paragraph 39. Both judgments related to Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time (OJ 1993 L 307, p. 18; hereinafter, ‘Directive 93/104’), the fourth recital in the preamble to which expressly refers to the Community Charter of the Fundamental Social Rights of Workers. 16 – On 1 May 1999. 17 – See point 16 of the Community Charter of the Fundamental Social Rights of Workers. 18 – Case C-85/96 Martinez Sala [1998] ECR I-2591, paragraph 31, and Case C-256/01 Allonby [2004] ECR I‑0000, paragraph 63. 19 – See the Allonby judgment (cited in footnote 18, paragraph 64). 20 – See the Allonby judgment (cited in footnote 18, paragraph 65); see also Case 43/75 Defrenne II [1976] ECR 455, paragraph 12, and Joined Cases C-270/97 and C-271/97 Deutsche Post [2000] ECR I-929, paragraph 57. 21 – Signed at Turin on 18 October 1961. 22 – Particularly points 7 to 10 of the Charter. 23 – .Allonby judgment (cited in footnote 18, paragraph 66). 24 – See also in this context the judgment in Allonby (cited in footnote 18, paragraph 67). 25 – Judgment in Case 66/85 Lawrie-Blum [1986] ECR 2121, paragraph 17, Case 344/87 Bettray [1989] ECR 1621, paragraph 12, Case C-337/97 Meeusen [1999] ECR I-3289, paragraph 13, and Case C-413/01 Ninni-Orasche [2003] ECR I‑0000, paragraph 24, and Martinez Sala (cited in footnote 18, paragraph 32). 26 – Case C-357/89 Raulin [1992] ECR I-1027, paragraphs 10 and 12, Case 53/81 Levin [1982] ECR 1035, paragraph 17, and the judgments cited in footnote 25 in Lawrie-Blum, paragraph 21, Meeusen, paragraph 13, and Ninni-Orasche, paragraph 26. 27 – .Raulin (cited on footnote 26, paragraph 13) and Allonby (cited in footnote 18, paragraph 69). 28 – Established case-law in the context of social policy; see, for example, Case C-77/02 Steinicke [2003] ECR I‑0000, paragraph 59, and Joined Cases C-4/02 and C-5/02 Schönheit and Becker, not yet officially reported, paragraph 83. 29 – .Raulin (cited in footnote 26, paragraphs 9 to 11). 30 – .Raulin (cited in footnote 26, paragraph 14). 31 – .Levin (cited in footnote 26, paragraphs 15 and 16) and Lawrie-Blum (cited in footnote 25, paragraph 21). 32 – The Commission and P&C advocate this in their written observations. 33 – Article 2(1) of Directive 97/81. 34 – Different views are taken with regard to the scope of the duty of interpretation of national law in conformity with directives before the expiry of the time-limit for transposition. Whilst Advocate General Darmon is of the opinion that there is a general duty to interpret national law in conformity with directives even before the expiry of the period for implementation (Joined Opinions in Cases C-177/88 and C-179/88 Dekker and Others [1990] ECR I-3941, I-3956, paragraph 11, Advocate General Jacobs does not go quite so far but does nevertheless assume that national measures implementing a directive that are already in force are required to be interpreted by the national court in accordance with that directive (Opinion in Case C-156/91 Hansa Fleisch [1992] ECR I-5567, paragraphs 23 and 24). 35 – Second sentence of Article 254(1) EC and second sentence of Article 254(2) EC. Directives that are not addressed to all Member States take effect upon notification to those to whom they are addressed. 36 – Case C-129/96 Inter-Environnement Wallonie [1997] ECR I-7411, paragraph 41. See also the Opinion of Advocate General Alber in Case C-157/02 Rieser, not yet officially reported, paragraph 112. 37 – Paragraph 3 of Article 249 EC in conjunction with paragraph 2 of Article 10 EC. See also – with regard to the adoption of legislation – Inter-Environnement Wallonie (cited in footnote 36, paragraph 45) and Case C-14/02 ATRAL [2003] ECR I-4431, paragraph 58, and Case C-157/02 Rieser, not yet officially reported, paragraph 66. 38 – Article 3 of Directive 97/81. 39 – Article 2(1) of Directive 97/81. 40 – See also Inter-Environnement Wallonie (cited in footnote 36, paragraph 43) and Rieser (cited in footnote 37, paragraph 68). 41 – .Inter-Environnement Wallonie (cited in footnote 36, paragraphs 40 and 41); Case C-106/89 Marleasing [1990] ECR I-4135, paragraph 8, and Case C-318/98 Fornasar and Others [2000] ECR I-4785, paragraphs 41 and 42. The judgment in Rieser (cited in footnote 37, paragraph 67) does not find that there is no duty of interpretation in conformity with directives before the period prescribed for their transposition has expired; it simply makes it clear that until the period prescribed for transposition has expired there is no question of direct application of the directives and pre-existing national rules do not have to be disapplied. Conversely, however, the issue of interpretation in conformity with directives is one that relates to the application of pre‑existing national law. 42 – See paragraph 24 of the Opinion delivered by Advocate General Jacobs in Hansa Fleisch (cited in footnote 34). 43 – A prohibition on discrimination against part-time workers was already contained in Paragraph 19d(6) of the AZG, as amended at BGBl I No 46/1997. See also the prohibition on sex discrimination in Paragraph 2 GlBG. 44 – See Steinicke (cited in footnote 28, paragraphs 48 to 51), as well as my Opinion in Case C-19/02 Hlozek, not yet reported, points 96 and 97, together with further references. 45 – .Steinicke (cited in footnote 28, paragraphs 49 to 51). 46 – See also the Opinion delivered by Advocate General Tizzano in Case C-77/02 Steinicke, not yet reported, points 41, 42 and 58. See also Clause 6(4) of the Framework Agreement on part-time work. 47 – The ‘positioning of working time’ ascertains when work is to be performed. 48 – In particular, provisions on full-time workers exceeding normal working time do not provide any adequate information on the positioning of their working time; they refer to the length of that working time. 49 – The ‘length of working time’ ascertains how much work is to be performed. 50 – Paragraph 12(1) of the German Law on part-time work and fixed-term contracts of employment of 21 December 2000 (Part-time and Fixed Contracts Act, BGBl I p. 1966) provides: ‘Employers and employees may agree that the employee should render his services according to workload (work on call). The agreement must stipulate a specific duration of weekly and daily working time. If the duration of weekly working time should not be stipulated, working time of ten hours shall be deemed agreed. If the duration of daily working time should not be stipulated, the employer shall call upon the employee to do work each time for at least three consecutive hours.’ 51 – Points 4 and 5 of the General Considerations to the Framework Agreement on part-time work; see also the fifth recital in the preamble to Directive 97/81. 52 – This view is confirmed by the fifth and eighth recitals in the preamble to Directive 93/104. See also Case C-84/94 United Kingdom v Council [1996] ECR I-5755, paragraphs 12, 22, 29 and 45. 53 – Council Directive 91/533/EEC of 14 October 1991 on an employer’s obligation to inform employees of the conditions applicable to the contract or employment relationship (OJ 1991 L 288, p. 32; hereinafter, ‘Directive 91/533’). 54 – Article 2(2)(i) in conjunction with Article 3(1)(c) of Directive 91/533. 55 – See also the second recital in the preamble to Directive 91/533. 56 – The eighth recital in the preamble to Directive 91/533 and Article 1(2)(b) thereof (‘casual work’) demonstrate, for example, that the intention of the Community legislature was not to lay down a rigid rule precluding all flexibility. 57 – As submitted by the Austrian Government in its oral observations. 58 – See Point 5 of the Community Charter of the Fundamental Social Rights of Workers. 59 – See the observations below on the third question, particularly paragraphs 108 to 112. 60 – In Belgium, for example, legislation stipulates minimum working hours for part-time workers, which are one-third of the working hours of a comparable full-time worker (Article 11a of the Law of 3 July 1978 on contracts of employment, Moniteur Belge of 22 August 1978). In Germany there is a legislative provision of subsidiary application in existence to cover the special case of work on call (see above, footnote 50). In other Member States collective agreements can contain provisions on minimum working hours. 61 – See Article 137(2)(b) EC (this provision replaces Article 2(2)(1) of the Agreement on social policy signed in Maastricht on 7 February 1992), the eleventh recital in the preamble to Directive 97/81 and Clause 6(1) of the Framework Agreement on part-time work. 62 – For the view of the referring court, see point 74 of this Opinion; for the opposing view taken by the Austrian Government, see point 73 of this Opinion. 63 – Case C-322/98 Kachelmann [2000] ECR I-7505, paragraph 23, and Case C-226/98 Jørgensen [2000] ECR I-2447, paragraph 29; see also Case 170/84 Bilka Kaufhaus [1986] ECR 1607, paragraphs 29 to 31, Case 171/88 Rinner-Kühn [1989] ECR 2743, paragraph 12, the Steinicke judgment (cited in footnote 28, paragraph 57) and the judgment in Case C-187/00 Kutz-Bauer [2003] ECR I-2741, paragraph 50. The prohibition of indirect discrimination in relation to working conditions also follows from Article 2(1) of Directive 76/207. 64 – See paragraphs 83 to 85 of this Opinion. 65 – The Order for Reference refers in this respect to the collective agreement governing commercial employees in Austria. It is for the referring court to ascertain pursuant to Clause 3(2) of the Framework Agreement on part-time work that this collective agreement applies to the comparable full-time workers within P&C’s establishment. 66 – See in detail points 76 to 78 of this Opinion. 67 – See point 84 of this Opinion and the examples given there. 68 – See point 84 of this Opinion for examples. 69 – Article 136(1) EC and Point 10 of the Community Charter of the Fundamental Social Rights of Workers. 70 – See Clause 6(5) of the Framework Agreement on part-time work which refers, with regard to the prevention and settlement of disputes and grievances, to national law, collective agreements and practice. 71 – See point 91 of this Opinion and the cases cited in footnote 63. 72 – According to P&C the figures of 65% and 85% are based on an overview of its establishments in Germany and Austria. 73 – Case C-167/97 Seymour-Smith and Perez [1999] ECR I-623, paragraph 62. 74 – Judgment cited in footnote 73, paragraphs 63 and 64. 75 – Points 106 and 107 of this Opinion. 76 – Points 109 and 110 of this Opinion.