Opinion of the Advocate General — ECLI:EU:C:2000:122
Date: 2000-03-14
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Germany

summary fashion and although it does not specify the categories of worker to which reference must be made in order to establish whether there is a discrimination on grounds of sex, it nevertheless contains enough information on the legal context and on the facts to enable the Court to give a ruling that will be of assistance. 18. Finally, at the hearing it was asserted that the reference for a preliminary ruling had become superfluous as a result of a recent decision of the BAG laying down the criteria according to which full-time and part-time workers are to be compared for the purpose of selection on the basis of social criteria. (6) That assertion is also unfounded. It must be borne in mind that, as the Commission has stated, the need to ensure legal certainty is as a rule enough to justify theintervention of the Court of Justice (7); furthermore, if the national court, which must be assumed to be acquainted with the new German case-law, has not withdrawn its request, it is reasonable to assume that it still considers that a reply is necessary for the resolution of the dispute in the main proceedings. 19. On the basis of the foregoing considerations, I consider that the question referred by the national court should be deemed admissible and that the Court must rule on the merits. The merits 20. The national court asks whether Articles 2 and 5(1) of the Directive, which prohibit any direct or indirect discrimination in working conditions, constitute an obstacle to the application of Article 1(3) of the German Law on employment protection, which holds full-time workers not to be comparable with part-time workers for the purposes of the 'selection on the basis of social criteria‘ that the employer is required to make if a part-time post is eliminated in order to reduce operating costs. 21. The above-mentioned German provisions clearly do not give rise to any form of direct discrimination between workers for the simple reason that the comparability criteria it lays down do not take account of any distinctions based on sex. This of course does not rule out, at least theoretically, the possibility that it might give rise to some form of indirect discrimination. And this is essentially what the national court is asking this Court to determine. 22. In this connection the Court has repeatedly stated that 'national rules discriminate indirectly against women where, although worded in neutral terms, they are more disadvantageous to women than men, unless that difference in treatment can be justified by objective factors unrelated to sex‘. (8) 23. As regards the category of part-time workers, it is not hard to see that that category is characterised by a clear predominance of women, with the result that any unfavourable treatment of it almost automatically translates into discrimination on grounds of sex. The Court has hitherto had occasion to rule in cases in whichthe unfavourable treatment suffered by women as a result of legislation that directly discriminated against part-time employment, (9) and has considered that the national provisions gave rise to indirect discrimination against women and direct discrimination against part-time employment. In this case, however, the discrimination against part-time workers is, once again, indirect because, although the treatment penalising that category of worker is not specifically prescribed in the national legislation, the application of that regime could have discriminatory effects. 24. In the Bötel judgment (10) the Court considered legislation similar to that at issue in this case, in other words a case in which the discriminatory effects resulting from the application of formally neutral national legislation to specific situations, and held that such effects are incompatible with the principle of equality where they give rise to a different treatment of part-time workers that penalises them, treatment which, in its turn, entails, at least as a rule, discrimination on grounds of sex. In point in the case examined by the Court was national legislation by virtue of which the members of a works council who took part in the training courses necessary for performance of the council's specific duties were to be absolved from their employment duties without any reduction in salary. The Court held that such legislation entailed discrimination against part-time workers (and therefore women) because the length of the training courses exceeded the individual working hours of the various part-time employees, with the result that for the hours they spent on the course they received less than the compensation paid, for the same reason, to full-time workers. 25. The German legislation in point today provides that an employer, when he decides to eliminate a post in order to reduce operating costs, is obliged to select, according to social criteria, the worker who will have to be dismissed and must make that selection from among comparable workers. In so doing, he must ensure that he selects the worker who, in comparative terms, will suffer the least harm from dismissal. This makes it necessary to establish the categories of worker between which the comparison must be made. As I have already mentioned, the German courts, when interpreting the concept of comparability, have stated that it applies only when the employer can moveworkers from one post to another without also having to make changes to their contracts of employment. This obviously supposes that the employment relationship is substantively the same and that therefore comparison between part-time and full-time workers is excluded. The same courts have observed that the transfer of a part-time worker to a full-time post (and vice versa) entails amendment of the contract of employment as these two categories of worker are not comparable. It follows, in my opinion that, if a part-time post is eliminated, the only situations that can be considered and compared, for the purposes of selection on the basis of social criteria, are those of part-time workers and that consequently they alone will suffer the harmful effects of the elimination of that post: the social circumstances of those workers, even where workers more disadvantaged than full-time workers are concerned, will be assessed by comparison only with other part-time workers, thus limiting the employment protection afforded under the German law. Consequently, if, among the part-time workers, there are substantially more women than men, the number of male workers taken into account for the purpose of the selection according to social criteria will necessarily be lower, with the further consequence that adequate protection for the purposes of retention of the post will not be guaranteed to women workers who are particularly disadvantaged and who therefore need such special protection. 26. The Bankhaus disputes this analysis. It maintains that in reality, in the present case, the application of the national legislation disadvantages neither full-time nor part-time employees in any way because, on the one hand, in the event of elimination of a part-time post, full-time workers are not taken into consideration when selecting an employee for dismissal on the basis of social criteria and therefore they do not run the risk of dismissal, and on the other hand, in the event of elimination of a full-time post, part-time workers would not rank among the workers who would be dismissed. According to the Bankhaus, this proves that in reality not only the legislation but also its application are as a whole neutral in that the situations of disadvantage which arise according to whether the elimination is of a part-time or a full-time post offset each other. This is an unconvincing argument. It does not seem right to maintain that a situation of disadvantage resulting from the application of national legislation can be regarded as legitimate and, for the purposes of the present case, compatible with the Directive if 'offset‘ by the effects of the application of the same legislation to a different situation. 27. Now that it is found that the German legislation in point gives rise to unequal treatment, to the detriment of part-time workers, it is necessary to establish if, and under what conditions, this inequality gives rise, if only potentially, to discrimination on grounds of sex. In order to do this, it is necessary to identify the reference group of workers, that is, the group of workers to be taken into consideration in order to establish if there is a disproportion between the numbersof men and women employees. On this point the parties put forward opposing arguments. 28. The Bankhaus and the German Government maintain that the reference group for establishing whether any disproportion exists must be that of the part-time workers employed in the undertaking and that consequently in this case there can be no discriminatory effect to the detriment of the plaintiff since, at the time of her dismissal, the Bankhaus employed five part-time workers, of whom three were women and two men. The plaintiff, on the other hand, maintains that in order to establish whether the national legislation gives rise to discriminatory effects to the detriment of women reference must be made to all part-time workers in Germany. The national court proposes something midway between the two, maintaining the that the reference group should be all the workers employed in a given sector. 29. I consider that the national court's proposal should be followed. It makes no sense to refer to the part-time workers employed in the undertaking in order to determine whether there are substantially more women than men workers. It must be considered that the situation of a particular undertaking, particularly if of limited size, may not be significant for the purpose of inferring from the percentage of women in part-time employment in that undertaking that there is indirect discrimination against women as a result of the (social) choice to dismiss a woman following elimination of a part-time post. It also does not seem reasonable to me to refer to the totality of part-time workers in a Member State, since working arrangements and employment problems usually have features that vary from sector to sector; and this state of affairs cannot be ignored when, following the elimination of a post, the employer has recourse to 'selection according to social criteria‘. On the other hand, I find it reasonable, precisely because of the last-mentioned consideration, to refer to part-time employees in the sector to which the undertaking that has eliminated a part-time post belongs. This means that the difference in treatment between part-time and full-time workers will constitute discrimination on the grounds of sex only if, in the sector to which the undertaking in which a part-time post has been eliminated belongs, the number of women in part-time work is significantly higher than the number of men. In any event, therefore, the duty of carrying out this assessment lies with the national court which, on the basis of the information in its possession, must verify whether there is any disproportion and, if so, evaluate it. 30. However, if such a situation exists, it is still necessary to consider a final factor, namely whether the disparity in treatment as between the two categories of worker can be regarded as justified for objective reasons unrelated to any discrimination of ground of sex, in other words, whether the application of the national legislation pursues objectives that justify the different treatment and whether the means used to achieve them are necessary and not disproportionate. 31. In this regard, it should first be observed that it is now settled case-law that 'it is ultimately for the national court, which has sole jurisdiction to assess the facts and interpret the national legislation, to determine whether and to what extent a legislative provision, which, though applying independently of the sex of the worker, actually affects a considerably higher percentage of women than men, can be justified by objective factors unrelated to sex‘. Nevertheless, 'the Court of Justice, which is called on to provide answers of use to the national court, may provide guidance based on the documents in the file and on the written and oral observations which have been submitted to it, in order to enable the national court to give judgment‘. (11) 32. As the Commission points out, the order for reference does not expressly indicate any possible justification for the disparity in treatment as between part-time and full-time workers as a result of the application of the German legislation on selection according to social criteria. As I have already said, the national court merely states that, according to the case-law of the BAG, two posts cannot as a rule be deemed comparable if the transfer of a worker from one to another would involve amendment of the employment contract and that, since changing a part-time post into a full-time post (or vice versa) requires amendment of the contract, there can be no comparability between full-time and part-time workers in the context of selection according to social criteria. 33. It does not seem to me that these considerations can suffice to justify a difference in treatment between the two categories of worker. First, it must be borne in mind that the application of the national legislation in the light of the case-law cited above means that the exclusion of full-time workers from the selection according to social criteria is effected automatically and in a generalised way, on the basis of the presumption that the difference in working hours excludes always and in any event the possibility for a part-time worker to take the post of a full-time worker, which would make it necessary for their contracts of employment to be amended and their employment relationship to be transformed. The Court has repeated on a number of occasions that, 'it is impossible to identify objective criteria unrelated to any discrimination [on the basis of] no more than a generalisation concerning certain categories of worker‘. (12) Consequently, although it can generally be said that working hours constitute afactor to be taken into consideration when comparing two posts, its effective importance, however, will necessarily depend on the circumstances of the case. Furthermore, in the context of such circumstances, this is only one of the factors that must be considered, together with, for example, the type of duties carried out or the possibility of allocating the tasks between the various employees in a different way, without affecting work efficiency. The need to amend the contract of employment must be assessed, case by case, in the light of the facts. Second, both where transformation of the contract of employment is unavoidable and where no amendment is necessary to enable the part-time employee to take the post of the full-time employee, the comparability of the two categories of worker must in the context of selection according to social criteria be assessed in relation to the conflict of interests that will inevitably exist between, on the one hand, the employer's right to organise work within his business as he wishes and, on the other, the right of part-time workers (and therefore of women) not to suffer discrimination. As between those two interests it is necessary to ascertain, on a case-by-case basis, which is the weightier and, as such, deserving of greater protection. (13) There is no need even to add that identification of the prevailing interest, since it is linked to the ascertainment of the specific circumstances of each case, is a matter exclusively for the national court. Finally, therefore, it may be said that disparity in treatment as between part-time and full-time workers in the context of the selection according to social criteria following the elimination of a part-time post can be justified only if the national court finds that, in the light of the facts, the two categories of worker cannot be compared except at the cost of a limitation on the employer's freedom that is disproportionate in relation to the objective of the protection of part-time workers, which as a rule is regarded as of paramount importance. Conclusions 34. In the light of the aforementioned considerations, I propose that the Court reply to the question referred by the Landesarbeitsgericht Hamburg, Germany, as follows: Articles 2 and 5(1) of Directive 76/207/EEC 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 must be interpreted as meaning that they preclude a provision such as that contained in Article 1(3) of the German Law on Employment Protection which, according to its interpretation by the German courts, does not deem part-time and full-time workers to be comparable in the context of the selection according to social criteria that the employer is required to make where a part-time post is eliminated, provided always that, in the productive sector to which the undertaking belongs, the number of women employed in part-time posts is significantly higher than the number of men in part-time posts, and that such application is not justified by objective criteria unrelated to any discrimination on grounds of sex. 1: Original language: Italian. 2: - OJ 1976 L 39, p. 40. 3: - See paragraph 6 of this Opinion. 4: - Case C-104/79 Foglia v Novello [1980] ECR 745, paragraph 11. 5: - Case C-60/98 Butterfly Music v Carosello Edizioni Musicali e Discografiche [1999] ECR I-3939, paragraph 13, my emphasis. 6: - See paragraph 7 of this Opinion. 7: - Case 146/73 Rheinmühlen Düsseldorf v Einfuhr- und Vorratsstelle für Getreide und Futtermittel [1974] ECR 139, paragraph 3. 8: - Case C-189/91 Kirsammer-Hack v Sidal [1993] ECR I-6185, paragraph 22. See also C-100/95 Kording v Senator für Finanzen [1997] ECR I-5289, paragraph 30; C-167/97 Seymour-Smith and Perez [1999] ECR I-632, paragraph 52; and C-50/96 Deutsche Telekom v Schröder [2000] ECR I-743, paragraph 28. 9: - See, particularly as regards equal pay, Case 170/84 Bilka v Weber von Hartz [1986] ECR 1607; C-33/89 Kowalska v Freie und Hansestadt Hamburg [1990] ECR 2591 and C-184/89 Nimz v Freie und Hansestadt Hamburg [1991] ECR 297. 10: - Case C-360/90 Arbeiterwohlfahrt der Stadt Berlin v Bötel [1992] ECR I-3589. See also, Case C-457/93 Kuratorium für Dialyse und Nierentransplantation v Lewark [1996] ECR I-243; and Case C-278/93 Freers and Speckmann v Deutsche Bundespost [1996] ECR I-1165. 11: - Judgment in Seymour-Smith and Perez, cited above, paragraphs 68 and 69. See also judgment in Freers and Speckmann v Deutsche Bundespost, cited above, paragraph 24 and Case C-328/91 Secretary of State for Social Security v Thomas and Others [1993] ECR I-1247, paragraph 13. 12: - Case C-1/95 Gerster v Freistaat Bayern [1997] ECR I-5253. See also judgment in Kording cited above, paragraph 23 and judgment in Nimz, cited above, paragraph 14. 13: - It may be useful here to recall that, in its judgment in Joined Cases C-270/97 and C-271/97, Sievers and Schrage [2000] ECR I-929, the Court, referring to the comparability of the exclusion of part-time workers from an occupational retirement pension scheme with the principle of equal pay for men and women, and therefore in a context different from that in this case, stated that 'the economic aim pursued by Article 119 of the Treaty, namely the elimination of distortions of competition between undertakings established in different Member States, is secondary to the social aim pursued by the same provision, which constitutes the expression of a fundamental human right‘. I consider that it is specifically this principle that constitutes the ground for asserting that it is unlawful to take into account only part-time workers for the purposes of the selection according to social criteria.