Opinion of the Advocate General — ECLI:EU:C:2001:171
Date: 2001-03-15
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary of the Judgment 
Social policy — Men and women — Equal pay — Pay — Definition — Monthly 
salary supplement under an individual employment contract — Included — Application 
to each aspect of pay taken in isolation — Employees performing the same work or work 
of equal value — Criteria for assessment — Classification in the same job category under 
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SUMMARY — CASE C-381/99 
a collective agreement — Burden of proof as to the absence of discrimination — 
Justification for a difference in pay — Criteria for assessment 
(EC Treaty, Art. 119 (Arts 117 to 120 of the EC Treaty have been replaced by Arts 136 
EC to 143 EC); Council Directive 75/117, Art. 1) 
The principle of equal pay for men and 
women laid down in Article 119 of the 
Treaty (Articles 117 to 120 of the Treaty 
have been replaced by Articles 136 EC to 
143 EC) and elaborated by 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: 
— a monthly salary supplement to which 
the employees concerned are entitled 
under their individual employment 
contracts, paid by the employer in 
respect of their employment, constitu­
tes pay within the scope of Article 119 
of the Treaty and Directive 75/117; 
equal pay must be ensured not only on 
the basis of an overall assessment of all 
the consideration granted to employees 
but also in the light of each aspect of 
pay taken in isolation; 
— the fact that a female employee who 
claims to be the victim of discrimina­
tion on grounds of sex and the male 
comparator are classified in the same 
job category under the collective agree­
ment governing their employment is 
not in itself sufficient for concluding 
that the two employees concerned are 
performing the same work or work to 
which equal value is attributed within 
the meaning of Article 119 of the 
Treaty and Article 1 of the Directive, 
since this fact is only one indication 
amongst others that this criterion is 
met; 
— as a general rule, it is for employees 
who consider themselves to be the 
victims of discrimination to prove that 
they are receiving lower pay than that 
paid by the employer to a colleague of 
the other sex and that they are in fact 
performing the same work or work of 
equal value, comparable to that per­
formed by the chosen comparator; the 
employer may then not only dispute the 
fact that the conditions for the applica­
tion of the principle of equal pay for 
men and women are met in the case but 
also put forward objective grounds, 
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BRUXNHOFER 
unrelated to any discrimination based 
on sex, to justify the difference in pay; 
— a difference in pay is capable of being 
justified by circumstances not taken 
into consideration under the collective 
agreement applicable to the employees 
concerned, provided that they consti­
tute objective reasons unrelated to any 
discrimination based on sex and in 
conformity with the principle of pro­
portionality; 
— in the case of work paid at time rates, a 
difference in pay awarded, at the time 
of their appointment, to two employees 
of different sex for the same job or 
work of equal value cannot be justified 
by factors which become known only 
after the employees concerned take up 
their duties and which can be assessed 
only once the employment contract is 
being performed, such as a difference 
in the individual work capacity of the 
persons concerned or in the effective­
ness of the work of a specific employee 
compared with that of a colleague. 
(see paras 34-35, 44-45, 58, 
60-62, 68, 76, 79-80 and operative part) 
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