Opinion of the Advocate General — ECLI:EU:C:1999:8
Date: 1999-01-19
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary 
I — Introduction I - 2867 
II — Legal context I - 2868 
A — Community provisions I - 2868 
B — National provisions I - 2869 
III — Facts I - 2871 
IV — The questions referred to the Court I - 2873 
V — Replies to the questions referred to the Court I - 2875 
A — Preliminary observations I - 2875 
B — The first question I - 2877 
C — The sixth question I - 2887 
D — The second question I - 2892 
E — The third, fourth and fifth questions I - 2896 
F — The seventh question I - 2903 
VI — Conclusion I - 2906 
I — Introduction 
1. In this reference for a prel iminary ruling 
unde r Article 177 of the E C Treaty, the Ober -
landesgericht Wien (Austria) seeks replies to 
seven questions concerning the interpretat ion 
of Article 119 of the E C Treaty and Counci l 
Directive 75 /117 /EEC of 10 February 1975 
on the approximat ion of the laws of the 
Member States relating to the application of 
the principle of equal pay for men and w o ­
men. 1 The quest ions referred to the C o u r t 
mainly concern the interpretat ion of the con­
cepts of 'equal w o r k ' and 'same job ' , and the 
identification of the groups to be compared 
* Original language: Greek. 
1 — OJ 1975 L 45, p. 19. 
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OPINION OF MR COSMAS — CASE C-309/97 
in order to ascertain whether there is indirect 
discrimination between men and women with 
regard to pay. 
II — Legal context 
A — Community provisions 
2. The first paragraph of Article 119 of the 
Treaty provides: 
'Each Member State shall during the first stage 
ensure and subsequently maintain the appli­
cation of the principle that men and women 
should receive equal pay for equal work.' 
3. The third paragraph of Article 119 of the 
Treaty specifies that: 
'Equal pay without discrimination based on 
sex means: 
(a) that pay for the same work at piece rates 
shall be calculated on the basis of the same 
unit of measurement; 
(b) that pay for work at time rates shall be 
the same for the same job.' 
4. Article 1 of Directive 75/117 reads as fol­
lows: 
'The principle of equal pay for men and 
women outlined in Article 119 of the Treaty, 
hereinafter called "principle of equal pay", 
means, for the same work or for work to 
which equal value is attributed, the elimina­
tion of all discrimination on grounds of sex 
with regard to all aspects and conditions of 
remuneration. 
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ANGESTELLTENBETRIEBSRAT DER WIENER GEBIETSKRANKENKASSE 
In particular, where a job classification system 
is used for determining pay, it must be based 
on the same criteria for both men and women 
and so drawn up as to exclude any discrimi­
nation on grounds of sex.' 
5. Article 4 of the Directive provides: 
'Member States shall take the necessary mea­
sures to ensure that provisions appearing in 
collective agreements, wage scales, wage agree­
ments or individual contracts of employment 
which are contrary to the principle of equal 
pay shall be, or may be, declared null and 
void or may be amended.' 
B — National provisions 
6. It appears from the order for reference and 
from the observations submitted to the Court 
that in Austria, under the Allgemeines Sozial­
versicherungsgesetz (General Law on Social 
Security, 'the ASVG'), the provisions con­
cerning the conditions of employment and 
the pension rights of the staff of social insur­
ance institutions are set out in staff regula­
tions embodied in collective agreements drawn 
up by the National Association of Austrian 
Social Insurance Institutions. Under Para­
graph 460 of the ASVG, any derogation from 
those provisions requires the written consent 
of the National Association. 
Dienstordnung A (Staff Regulation A) applies 
to employees of social insurance institutions 
who are engaged in administration, patient 
care or dental technicians' duties. 
Paragraph 37 of Staff Regulation A, which 
provides for the classification of administra­
tive employees according to the salary bracket 
to which they belong, includes in 'senior per­
sonnel', Salary Bracket F, Staff Category I, 
'psychologists authorised to practise psy­
chology on a self-employed basis (general 
psychologists and clinical psychologists)'. 
Other psychologists are classified as 'middle-
ranking personnel', Salary Bracket E, Staff 
Category III. Paragraph 38 of Staff Regula­
tion A, which relates to patient care staff, 
classifies psychotherapists in Salary Bracket 
C, Staff Category II. 
Dienstordnung B (Staff Regulation B) applies 
to all doctors and dentists employed by the 
social insurance institutions (Paragraph 1(1)). 
Doctors who work in hospital establishments 
and are authorised to practise as specialists on 
a self-employed basis are classified in Salary 
Bracket B III. 
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OPINION OF MR COSMAS — CASE C-309/97 
For comparison, in 1995 the basic pay of 
doctors in Salary Bracket B III was between 
ATS 42 194 and ATS 73 457, depending on 
their length of service, whereas during the 
same period that of administrative employees 
in Salary Bracket F I was between ATS 24 796 
and ATS 51 996, also depending on length of 
service. 
Moreover, the working week of doctors 
employed by the social insurance institution 
which is the defendant in the main proceed­
ings is 36 hours, whereas that of other 
employees is 40 hours. 
The abovementioned collective agreements 
include detailed conditions of service and pro­
vide inter alia that subject to certain condi­
tions, in particular completion of 10 years' 
service, employees are protected against arbi­
trary dismissal. 
7. The Psychotherapiegesetz (Law on Psy­
chotherapy) 2 defines psychotherapy 3 and lays 
down the conditions for practising as a psy­
chotherapist. 4 
The Ärztegesetz (Law on Medical Practice) 5 
defines the activities of the medical profes­
sion 6 and lays down the requirements for 
practising as a doctor. 7 
Finally, the Psychologengesetz (Law on Psy­
chologists) 8 defines the work of psycholo-
2 — Bundesgesetz über die Ausübung der Psychotherapie, BGBl. 
361/1990. 
3 — Psychotherapy is defined as the comprehensive, considered 
and structured treatment, on the basis of general and spe­
cialist training, of behavioural disorders and psychopathic 
conditions caused by psycho-social or psychosomatic factors, 
by means of scientific psychotherapeutic methods in interac­
tion between one or more patients and one or more psycho­
therapists, with the aim of alleviating or eliminating existing 
symptoms, modifying disturbed behaviour and attitudes and 
promoting the patient's maturity, development and health 
(Paragraph 1). 
4 — To practise as a psychotherapist it is not necessary to have 
completed a university course, but a general training course 
(basic psychotherapy training module) consisting of not less 
than 765 hours of theory and 550 hours of practical training 
must have been followed. The further training necessary (spe­
cialist psychotherapy module) consists of a minimum of 300 
hours of theory and 1 600 hours of practical training. In addi­
tion to possessing certain qualifications (see Paragraph 10(2)(5) 
to (9)), practising psychotherapists must also be registered in 
the register of psychotherapists (Paragraph 17). The right to 
practise the profession under the Psychologengesetz (Law on 
Psychologists) is not restricted to persons satisfying these 
requirements (Paragraph 24 (3)). 
5 — Bundesgesetz über die Ausübung des ärztlichen Berufes und 
die Standesvertretung der Ärzte, BGBl. 373/1984. 
6 — These are all activities requiring knowledge of medical sci­
ence, which are applied directly to or indirectly for humans, 
including in particular the diagnosis and treatment of mental 
illness and emotional disorders (Paragraph 1(2)(1) in conjunc­
tion with Paragraph 1(2)(3) of the Law on Medical Practice). 
Consequently these activities include the practice of psycho­
therapy. 
7 — In order to practise as a medical specialist it is necessary to 
complete at least six years' postgraduate practical training, for 
which there are comprehensive regulations, and to pass the 
qualifying examination for specialists (Paragraph 5 of the Law 
on Medical Practice). 
8 — Bundesgesetz über die Führung des Berufsbezeichnung 'Psy­
chologe' oder 'Psychologin' und über die Ausübung des psy­
chologischen Berufes im Bereich des Gesundheitswesens, 
BGBl. 360/1990. 
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ANGESTELLTENBETRIEBSRAT DER WIENER GEBIETSKRANKENKASSE 
gists 9 and lays down the requirements for 
practising as a psychologist. 10 
III — Facts 
8. The dispute between the parties to the 
main proceedings, the Angestelltenbetriebsrat 
der Wiener Gebietskrankenkasse (Staff Com­
mittee, Vienna Area Health Fund, 'the Staff 
Committee') and the Wiener Gebietskranken­
kasse (Vienna Area Health Fund, 'the Health 
Fund'), concerns the pay of psychologists 
qualified as doctors who work for the Health 
Fund as psychotherapists. 
9. It appears from the observations (not dis­
puted) of the Health Fund, the respondent in 
the main proceedings, that the said Fund is 
one of 28 Austrian social insurance institu­
tions. To carry out its task, which is to imple­
ment the statutory sickness insurance scheme 
for employees under private-law employment 
contracts in the Bundesland Wien, the Health 
Fund uses, inter alia, numerous out-patient 
clinics. Many of these offer insured persons 
the direct psychotherapy services of employees 
of the insurance funds. The out-patient clinics 
are also used by other social insurance organi­
sations. 
10. The Health Fund employs three catego­
ries of psychotherapists: (a) qualified doctors 
who have completed their general or specialist 
training, which is obviously of a wider scope 
than training in psychotherapy, (b) graduate 
psychologists who are qualified to practise on 
a self-employed basis (general psychologists 
and clinical psychologists) and who obviously 
also meet the requirements laid down by the 
Law on Psychotherapy for practising as psy­
chotherapists, and (c) psychotherapists who 
are neither doctors nor psychologists, but 
have completed the training laid down by the 
Law on Psychotherapy. It appears that in 
practice, the Health Fund concludes different 
collective employment agreements with the 
members of each of the above-mentioned cat­
egories, depending on their 'more thorough 
training', whereas the order for reference indi­
cates that all the employees concerned per­
form the same work of psychotherapy. 
11. The Staff Committee which is the appel­
lant in the main proceedings applied to the 
Arbeits- und Sozialgericht Wien (Labour and 
Social Security Court, Vienna) for a ruling 
that Staff Regulation B applies to the employ­
ment relationship between the Insurance Fund 
and the psychotherapists employed by it on 
1 December 1994 who have a degree in psy­
chology and that such psychotherapists should 
9 — The practice of psychology in the field of health consists in 
the investigation, interpretation, modification and prognosis 
of human experience and behaviour by applying the knowl­
edge and methods of the science of psychology gained through 
the acquisition of specialist competence within the meaning 
of the federal law in question. 
10 — Psychology graduates must take a specialised postgraduate 
course of 160 hours of theory, 1 480 hours of practical 
training and an additional 120 hours of training in the par­
ticular field of speciality. 
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OPINION OF MR COSMAS — CASE C-309/97 
be assigned to Category B III of Staff Regula­
tion B and be paid accordingly because, firstly, 
the psychotherapists in question carry out 
essentially the same duties as doctors who are 
psychotherapists, those duties being invoiced 
by the Health Fund at the same rate, and, 
secondly, it is mainly women who are affected 
by the fact, for which there is no objective 
justification, that the pay for psychotherapists 
who have degrees in psychology is lower. 
12. The Health Fund claimed that the appli­
cation should be dismissed, primarily on the 
ground that the different classification of these 
two categories is due to the fact that their 
training and qualifications are different and 
that graduate psychologists practising psy­
chotherapy — and who are not doctors — 
receive in any case a higher salary than that 
of any graduates who do not perform execu­
tive functions, and their classification in the 
category sought by the Staff Committee would 
ultimately be equivalent to treating them as 
specialist doctors. The Health Fund added 
that the psychologists in question are not a 
minority in relation to doctors practising psy­
chotherapy and that they are not engaged in 
what is typically a women's profession. The 
fact that in the Health Fund there are more 
women than men among psychologists 
working as psychotherapists is mere chance, 
and generally there are more women than men 
working as doctors in the out-patient clinics 
of the Health Fund. 
13. The action was dismissed at first instance 
on the ground that the 1979 Gleichbehand-
lungsgesetz (Law on Equal Treatment) does 
not apply to all forms of differential treat­
ment within occupational groups, but only 
provides for the equal treatment of men and 
women at work. The court also found that 
the Health Fund made no distinction on the 
basis of sex when recruiting doctors and psy­
chologists, the disproportion between men 
and women being purely a matter of chance, 
and therefore there was no breach of the 
principle of equal treatment or of Article 119 
of the Treaty and the Community directives 
based on that article. Finally, the court took 
the view that the different treatment of doc­
tors in relation to graduate psychologists was 
attributable in any event to the functions of 
the former, because doctors who were 
appointed as specialists must, in emergencies, 
carry out other medical tasks, which psy­
chologists are neither able nor entitled to do. 
14. The Staff Committee appealed against that 
judgment to the Oberlandesgericht Wien, 
which established that the parties agreed on 
the following facts: 
— the Health Fund employs a total of 248 
doctors, of whom 135 are women; 
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ANGESTELLTENBETRIEBSRAT DER WIENER GEBIETSKRANKENKASSE 
— in the Ambulatorium Mariahilf out-patient 
clinic the Health Fund employs as psy­
chotherapists 6 psychologists, of whom 5 
are women, and 6 doctors, of whom 1 is 
a woman; 
— the total number of persons employed as 
psychotherapists by the social insurance 
institutions is 34, of whom 10 are doctors 
and 24 are graduate psychologists. Of the 
24 psychologists working as psychothera­
pists, 18 are women whereas, of the doc­
tors working as psychotherapists, only 2 
are women; 
— for the whole of Austria on 9 April 1996 
there were 1 425 men and 2 338 women 
registered as psychologists trained in psy­
chotherapy. 11 
IV — The questions referred to the Court 
15. The Oberlandesgericht Wien took the 
view that the decision in the case depended 
on the interpretation of certain provisions of 
Community law and decided, by order of 5 
May 1997, to refer the following questions to 
the Court: 
'(1) Do the terms "the same work" and "the 
same job" apply, for the purposes of 
Article 119 of the EC Treaty or Direc­
tive 75/117/EEC, where the same tasks 
are performed over a considerable length 
of time (several salary periods) by per­
sons the basis of whose qualification to 
exercise their profession is different? 
(2) Is it material, in deciding whether there 
is discrimination for the purposes of 
Article 119 of the EC Treaty or Direc­
tive 75/117/EEC, that: 
(a) pay is fixed solely by the parties to 
an employment contract who are at 
liberty to incorporate therein the 
terms of collective agreements, or 
that 
11 — According to the figures referred to by the Insurance Fund 
in its written observations, the 28 social insurance institu­
tions in Austria and the National Association of Social 
Insurance Institutions employ 29 633 persons, of whom 
18 634 (62.88%) are women. The social insurance institu­
tions employ 1 932 doctors. 536 doctors work in out-patient 
clinics and 260 of these (48.51%) are women. The social 
insurance institutions employ a total of 50 psychologists. 14 
psychologists work in out-patient clinics and 13 of these 
(92.86%) are women. Finally, during the written procedure 
the Insurance Fund stated that 50% or 51% of the doctors 
working for social insurance institutions arc women, and 
this figure has not been challenged by the other parties. 
I - 2873 
OPINION OF MR COSMAS — CASE C-309/97 
(b) minimum rates of pay are fixed for 
all employees in a given sector by 
general rules (collective agreements), 
or that 
(c) pay is governed definitively by man­
datory collective agreements? 
(3) Where a collective agreement specifies, 
in definitive rules relating to remunera­
tion, different levels of pay for the same 
work or work of equal value depending 
on professional qualifications, must ref­
erence be made, when selecting groups 
for comparison in determining whether 
a measure gives rise to discrimination, to 
(a) the persons actually employed in the 
undertaking, or 
(b) the employees working in the field 
covered by the collective agreement, 
or 
(c) all those who are qualified to pursue 
the occupation in question? 
(4) In such a case (Questions 2 and 3), must 
account be taken of the proportion of 
men to women in the disadvantaged 
group only, or in both groups? 
(5) Where the tasks under consideration 
which are the same in both groups are 
only some of the tasks covered by the 
professional qualifications in question, 
must account be taken of 
(a) all persons employed in the relevant 
context (undertakings, collective 
agreements — see Question 3) who 
have the professional qualifications 
in question (all specialist doctors and 
all psychologists), or 
(b) all persons actually entitled to per­
form the duties in question (e. g. 
doctors with a specialist qualifica­
tion in psychiatry), or 
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ANGESTELLTENBETRIEBSRAT DER WIENER GEBIETSKRANKENKASSE 
(c) only those who actually perform such 
duties? 
(6) Where staff perform the same duties in 
an undertaking, may different training 
be regarded as a factor justifying lower 
pay? Is a broader professional qualifica­
tion to be regarded as an objective factor 
justifying different pay, regardless of the 
duties actually performed in the under­
taking? 
Is the decisive factor therefore 
(a) whether the better-paid group of 
employees may also be called upon 
to perform other tasks within the 
undertaking, or 
(b) must it be shown that they were in 
fact called upon to perform other 
tasks ? 
In this connection, must account be taken 
of the fact that the applicable rules of the 
collective agreements include protection 
against unfair dismissal? 
(7) Does it follow from Article 222 of the 
EC Treaty, or the application by analogy 
of Article 174 thereof, that any right to 
pay under another collective agreement 
(between the same parties) which may 
be inferred from Article 119 of the EC 
Treaty or Directive 75/117/EEC only 
arises when the Court of Justice rules 
that such a right exists?' 
V — Replies to the questions referred to the 
Court 
A — Preliminary observations 
16. It is clear from the order for reference 
and the parties' observations that the Health 
Fund is a public-law body. The fact that it is 
not stated whether the employment relation­
ship of the doctors and psychologists 
employed as psychotherapists by the Health 
Fund is governed by private law or public 
law does not preclude the application of the 
principle that men and women should receive 
equal pay for equal work, laid down by Article 
119 of the Treaty.12 
12 — The Court has in any case held that this principle applies to 
the public service: see Case C-l/95 Gerster [1997] ECR 
1-5253, paragraphs 18 and 19. 
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OPINION OF MR COSMAS — CASE C-309/97 
17. It is also common ground that there is an 
actual difference in the pay of doctors and 
psychologists who are employed as psycho­
therapists by the Health Fund and that it is 
more than superficial. If the difference 
observed were only superficial, it would be 
unnecessary to examine the present case fur­
ther and neither the statistical data relating to 
the groups concerned nor the question of 
whether the difference in pay might be objec­
tively justified need be considered. 13 
18. Furthermore, it is clear that in the present 
case, if there is discrimination based on sex in 
the matter of pay, such discrimination can 
only be indirect in so far as the rules gov­
erning the status of the two groups of workers, 
that is to say, doctors and psychologists who 
practise psychotherapy, in no way make sex 
a criterion for differentiation in pay. 14 Con­
sequently, if there is a question concerning 
the application of the principle of equal treat­
ment laid down in Article 119 of the Treaty, 
the national court must apply the principles 
developed by the Court for establishing the 
existence of indirect discrimination based on 
sex in the matter of pay. 15 
19. Finally, certain factual aspects of the 
present case seem to call for additional obser­
vations. To establish the status of the two 
groups of workers concerned, it is necessary 
to ascertain the exact terms of the employ­
ment relationship of each group, the criteria 
according to which doctors are chosen to 
work as psychotherapists, how that choice is 
related to their specialisation, if any, and 
whether, once chosen, they are employed only 
as psychotherapists or are assigned to other 
duties at the same time. It is also necessary to 
explain and establish, as the court of first 
instance in the main proceedings pointed out, 
why a body which represents the interests of 
all employees (the Staff Committee) should 
challenge an agreement concluded by other 
organisations representing the interests of the 
parties to the action. 
However, it must be observed that the clari­
fication required is a matter for the national 
court because it has better knowledge of the 
situation in the Member State concerned. In 
addition, the questions referred to the Court 
are of a general nature and replies can be given 
without resolving the factual issues set out 
above, which must be determined by the 
national court. 16 13 — See Joined Cases C-399/92, C-409/92, C-425/92, C-34/93, 
C-50/93 and C-78/93 Helmig and Others [1994] ECR I-5727, 
paragraphs 23, 30 and 32. 
14 — For the definition of indirect discrimination, see Gerster 
(cited in footnote 12, paragraph 30) and the definition which 
now appears in Article 2(2) of Council Directive 97/80/EC 
of 15 December 1997 on the burden of proof in cases of 
discrimination based on sex (OJ 1998 L 14, p. 6). 
15 — As to those principles, see my Opinion of 14 July 1997 in 
Case C-167/97 Seymour-Smith and Perez, still pending, 
paragraph 117 et seq. 16 — Case C-127/92 Enderby [1993] ECR I-5535, paragraph 10. 
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ANGESTELLTENBETRIEBSRAT DER WIENER GEBIETSKRANKENKASSE 
B — The first question 
20. In the first question, the Oberlandesger­
icht Wien asks whether the fact that the same 
duties are involved is sufficient for finding 
that there is 'equal work' for the purpose of 
the first paragraph of Article 119 of the Treaty 
or 'the same job' for the purpose of subpara­
graph (b) of the third paragraph of the same 
article, even where those duties are carried 
out on the basis of different professional quali­
fications, arising from different professional 
training, and where one of the groups of 
employees concerned is qualified, by virtue 
of the professional qualification required, to 
perform other duties in a wider field. 
21. It must be observed that, although the 
importance of the term was originally under­
estimated, 17 the existence of 'equal work' 
within the meaning of the first paragraph of 
Article 119 of the Treaty is of fundamental 
importance for the application of the prin­
ciple of equal pay for men and women. 18 On 
the basis of the principle of proportional 
equality, discrimination contrary to the prin­
ciple of equality arises through the applica­
tion of different rules to comparable situa­
tions or the application of the same rule to 
different situations. 19 The principle of equal 
pay, which is a specific expression of the gen­
eral principle of non-discrimination, presup­
poses that the men and women to whom it 
applies are in identical, 20 or at least similar, 21 
situations. Obviously, the element of 'same 
work' is a fundamental condition not only 
for regarding two groups of workers as com­
parable and their respective situations as simi­
lar, 22 but also for sex discrimination between 
those groups to exist. 23 For this reason, fur­
thermore, in accordance with the principle 
that the person alleging facts in support of a 
claim must adduce proof of such facts, it is 
essential for a person pleading such discrimi­
nation to prove that the work in question is 
the same. 24 
22. To the semantic content of 'equal work' 
for the purpose of the first paragraph of 
Article 119 of the Treaty must be added the 
idea of 'work to which equal value is 
17 — According to Advocate General Trabucchi (sec his Opinion 
in Case 43/75 Defrenne [1976] ECR 455, in particular 
p. 486), 'with regard to the definition of the concept of 
equal work", which is in any case partly described in the 
third paragraph of Article 119 (which, in addition to using 
the term "same work" for work at piece rates, also refers to 
pay for work at time rates as "the same for the same job"), 
there is no need to exaggerate its importance in applying the 
article. It has been rightly observed that Article 119 "does 
not try to determine when men and women arc doing the 
same work, but only to ensure that the sex of the worker is 
in no way taken into account in decisions on pay. Whether 
the work is the same or different is a question of. fact to be 
determined in every individual case in accordance with the 
responsibilities assigned to each person concerned and must 
not be the subject of an a priori decision any more than 
there is an apriori decision that two men placea on the same 
rate of pay perform the same work" (Levi Sandri, in Com­
mentano CEE, vol. IL p. 956).' 
18 — Sec the Opinion of Advocate General Lenz in Enderby (cited 
in footnote 16, paragraph 5). 
19 — Case C-279/93 Schumacher [1995] ECR I-225, paragraph 30; 
Case C-342/93 Gillespie and Others [1996] ECR I-475, 
paragraph 16, and Case C-100/95 Kording [1997] ECR 
I-5289, paragraph 14. 
20 — Case C-132/92 Roberts [1993] ECR I-5579, paragraph 17. 
The actual wording of this judgment indicates that the work 
in question must be absolutely identical: However, the 
wording does not accord with the more general spirit of the 
Court's case-law. On this point, sec paragraphs 22 and 23 of 
this Opinion. 
21 — Case C-400/93 Royal Copenhagen [1995] ECR I-1275, para­
graph 33. 
22 — See the Opinion of Advocate General Lenz in Case 109/88 
Danfoss [1989] ECR 3199, paragraph 40, and the Royal 
Copenhagen judgment, cited in footnote 21, paragraphs 32 
and 33. 
23 — Royal Copenhagen, cited in footnote 21, paragraph 40. 
24 — Enderby, cited in footnote 16, paragraphs 13 to 19, and the 
Opinion of Advocate General Lenz in that case, paragraphs 
15 to 39, and also his Opinion in Roberts, cited in footnote 
20, paragraph 12 et seq. 
I - 2877 
OPINION OF MR COSMAS — CASE C-309/97 
attributed' for the purpose of Article 1 of 
Directive 75/117. 25 The term 'work of equal 
value' is wider than 'similar work' or 'equal 
work', so that it does not necessarily have to 
be identical or similar work. Different work 
may be regarded as comparable if it is found 
to have equal value, as in the case of work 
which is not mixed, that is to say, work which 
cannot be carried out by both sexes. 
23. However, it must be noted that the Court 
has held that 'Article 1 of Council Directive 
75/117, which is principally designed to facili­
tate the practical application of the principle 
of equal pay outlined in Article 119 of the 
Treaty, in no way alters the content or scope 
of that principle as defined in the Treaty'. 26 
In other words, the Court considered that the 
idea of 'work of equal value', in the sense 
mentioned above, was and is included in the 
term 'equal work' in Article 119 of the Treaty. 
The approach taken by Directive 75/117 to 
the interpretation of that article of the Treaty 
merely confirmed that the term 'equal work' 
should be construed broadly. 27 
24. Even if the definition of 'work of equal 
value' is in principle wider than that of 'same 
work' and if the fundamental semantic differ­
ence which they imply is highlighted in the 
case of work which is dissimilar but of equal 
value, it must be admitted that the opposite 
situation may also arise: logically it is possible 
for similar work to exist which nevertheless 
has a different value. This could be the case if 
'same work' is construed as meaning the per­
formance of 'the same duty'. Consequently it 
is possible for two workers to carry out the 
same duty, but for the work they do to be of 
different value either because it is done under 
different conditions, or because the workers 
concerned have different experience or dif­
ferent skills. 28 In this connection I should 
like to stress that the concept of the value of 
work should not refer only to its financial 
value, but also its qualitative value. Even if 
the financial value usually accords with the 
qualitative value, in certain cases the cost fixed 
for work of a different qualitative level may 
be the same for reasons of expediency, for 
example, on grounds of social policy. 
25. When, however, when is work 'equal 
work' or 'work of equal value' for the pur­
pose of the first paragraph of Article 119 of 
the Treaty? 
25 — Directive 75/117 filled the gap in Article 119 in relation to 
Article 2(1) of Convention 100 of the International Labour 
Organization (1951) and Article 4, point 3, of the European 
Social Charter (Turin, 18 October 1961), both of which laid 
down the principle of equal treatment for work of equal 
value. 
26 — See Case 96/80 Jenkins [1981] ECR 911, paragraph 22, and 
Case 192/85 Newstead [1987] ECR 4753, paragraph 20. 
27 — See the Opinion of Advocate General Capotorti in Case 
129/79 Maatrthys [1980] ECR 1275, to the effect that 'same 
work' in Article 119 'should be understood ... in such a 
manner as to include two jobs showing a high degree of 
similarity, even if there is not total identity between them' 
(point 4, in particular p. 1296). In any case, since the Treaty 
of Amsterdam (Article 1, point 22), Article 119 of the EEC 
Treaty now refers expressly to two concepts: '1. Each Member 
State shall ensure that the principle of equal pay for male 
and female workers for equal work or work of equal value 
is applied.' 
28 — The difference in skills may be so great that it gives rise to 
the question whether the job or the work is completely dif­
ferent: see paragraph 33 of this Opinion. 
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ANGESTELLTENBETRIEBSRAT DER WIENER GEBIETSKRANKENKASSE 
26. The third paragraph of that article seeks 
to define the term 'equal work' used in the 
first paragraph, making a distinction between 
work at piece rates (indent (a)) and work at 
time rates (indent (b)). 29 In the first case, the 
Treaty repeats the term 'equal work' used in 
the first paragraph of Article 119. In this case, 
however, the use of the term is influenced by 
the nature of the work at piece rates, when 
the worker is paid entirely or partly according 
to his or her productivity. 30 On the other 
hand, under indent (b) of the third paragraph 
of Article 119, the criterion for comparing the 
work done where pay is according to time 
rates is 'the job', and not individual output. 
'The same job' is therefore a specific form of 
the concept of 'equal work' in the first para­
graph of Article 119 of the Treaty in the con­
text of work at time rates, and could be 
defined in each case on the basis of an objec­
tive formal classification of jobs in a service 
or an undertaking or a sector of activity. In 
that case, therefore, the definition of 'equal 
work' must be based on objective criteria per­
mitting a structural assessment of jobs and 
must not depend on whether the financial 
reward matches the individual result of the 
work in question. Most of these criteria are 
indicated by the classification of jobs in public 
administration and relate, in particular, to the 
conditions for carrying out the jobs in ques­
tion, the sector of activity of which they form 
part, 31 their legislative context, 32 the level of 
the jobs in the hierarchy, their duration, the 
skills and knowledge required, the level of 
ability of workers from a general viewpoint, 
their period of service, etc. 33 
A systematic construction of Article 119 of 
the Treaty would therefore require acceptance 
of the following principles. The words 'equal 
work' in the first paragraph of that article 
indicate any kind of work and refer to the 
nature and purpose of the jobs or duties 
which are being compared. The same words 
used in indent (a) of the third paragraph refer 
to work at piece rates and are based on a 
comparison of the individual results of work. 
On the other hand, 'the same job' in indent 
(b) means work at time rates and refers to the 
formal components of the work in question, 
that is to say, the conditions on which it is 
done. It follows from what I have said that 
there may be 'equal work', in the sense of the 
same duties, without there being 'the same 
job', because those duties are not carried out 
29 — The consequences of this distinction, which the Court has 
not yet examined in detail, must be assessed in the light of 
the fact that there are also mixed systems. See also Royal 
Copenhagen (cited in footnote 21), which deals with this 
distinction. 
30 — His pay may include a fixed portion, but the main part is 
variable and is paid by reference to the number of articles 
produced. Thus his actual earnings arc determined, at least 
in part, by his output, which is assessed on a wholly indi­
vidual basis (see the Opinion of Advocate General Léger in 
Royal Copenhagen, cited in footnote 21, paragraph 60). In 
the case of piece-work, therefore, a comparison of output 
involves comparing the individual productivity of each 
worker. 
31 — See paragraph 55 of this Opinion, concerning the relevance 
of the sector to the question whether there is equal work or 
work of equal value. 
32 — See paragraph 54 et seq. of this Opinion, concerning the 
second question referred, which raises the issue of the rel­
evance of provisions in collective agreements in the assess­
ment of whether the work is the same or of equal value. 
33 — On comparing managerial posts, see the Opinion of Advo­
cate General Lenz in Enderby, cited in footnote 16, para­
graph 10. 
I - 2879 
OPINION OF MR COSMAS — CASE C-309/97 
on the same conditions or are carried out by 
workers with different skills. 
27. If Article 119 of the Treaty and Directive 
75/117 are construed together, the following 
conclusions result. By analogy with the pair 
of terms 'equal work' and 'the same job', in 
addition to the term 'work of equal value' 
there must also exist the notion of 'job of 
equal value'. This means that two dissimilar 
jobs may nevertheless have the same value. 
By analogy with my earlier observation, 34 it 
must be accepted that equal work may exist, 
in the sense that it involves the same duties, 
carried out by workers holding jobs of dif­
ferent value. In that case, equal work will not 
have equal value, at least if it is assessed quali­
tatively. 35 
28. With regard to the criteria for 'equal 
work' or 'work of equal value — or, a for­
tiori, higher value', 36 the guidance offered by 
the existing case-law is generally limited. This 
is due primarily to the fact that in most cases 
where the Court has been asked for a ruling 
on the interpretation of Article 119 it has 
started from the principle, which was a 
working hypothesis for the national court 
itself, that the workers concerned carried out 
equal work or work of equal value. A char­
acteristic example of this is Enderby, 37 which, 
contrary to the argument of the Staff Com­
mittee which is the appellant in the main pro­
ceedings, did not rule on the question of the 
equal value of the work of speech therapists 
and pharmacists.38 
29. The Macarthys judgment, 39 which is one 
of the rare judgments in which the Court 
directly defines its position on the criteria for 
'equal work' or 'work of equal value', shows 
that 'equal work' is an entirely qualitative 
concept which is exclusively concerned with 
the nature of the work in question. This 
means that the only criterion for the existence 
of 'equal work' or 'work of equal value' is the 
actual activity of the workers. As the German 
Government observes in the present case, 
34 — See paragraph 24 of this Opinion. 
35 — See paragraph 24 of this Opinion. 
36 — See Case 157/86 Murphy and Others [1988] ECR 673, where 
the Court held that Article 119 of the Treaty must be inter­
preted as covering the case where a worker who relies on 
that provision to obtain equal pay within the meaning 
thereof is engaged in work of higher value than that of the 
person with whom a comparison is to be made (paragraph 
12). To adopt a contrary interpretation would render the 
principle of equal pay ineffective and nugatory (paragraph 
10). 
37 — Cited in footnote 16. 
38 — Enderby, cited in footnote 16. As the questions of interpre­
tation of Community law referred by the national court 
were not manifestly unrelated to the reality or the subject-
matter of the main proceedings, the Court adopted the 
hypothesis of the national court that the work was of equal 
value. The Court observed that the validity of that hypoth­
esis must be verified subsequently by the national court 
(paragraphs 10 to 12). See also Danfoss, cited in footnote 22. 
On this point, in Royal Copenhagen, cited in footnote 21, 
the Court adopted the national court's hypothesis that the 
work in question was of equal value, although there may 
have been some doubt as to the validity of that hypothesis, 
as Advocate General Léger indicated in his Opinion (para­
graphs 14 to 17). 
39 — Cited in footnote 27. 
I - 2880 
ANGESTELLTENBETRIEBSRAT DER WIENER GEBIETSKRANKENKASSE 
there is 'equal work' where identical or similar 
work is carried out in different jobs. 40 
30. In the subsequent case-law the Court 
does not appear to have modified essentially 
the position it adopted in Macarthys. The 
object and nature of the task in question 
appears to be a sufficient material criterion 
for determining whether two groups of 
workers perform the same work or work of 
equal value. 41 In addition, the conceptual dis­
tinctions made by Article 119 of the Treaty 
have not hitherto been examined by the Court, 
which has confined itself mainly to analysing 
the term 'equal work' 42 in the context of the 
first paragraph of Article 119, and does not 
appear to attach importance to systematic 
analysis of the semantic difference between 
'equal work' and 'the same job'. 43 More 
40 — Macarthys, cited in footnote 27, paragraph 11. As to the 
question of work done at different times, the Court observed 
that the fact that the work compared is done at different 
times is, in principle, irrelevant as regards discrimination 
which is directly covered by Article 119 (paragraph 12). 
However, the possibility cannot be ruled out that a differ­
ence in the pay of workers doing the same job but at dif­
ferent times may be explained by the operation of factors 
which arc unconnected with discrimination on grounds of 
sex, for example where in the meantime economic condi­
tions have changed or a stricter incomes policy is adopted. 
This is a question of fact which must be assessed by the 
national court. 
As to the question of jobs done at different places, the Court 
ruled in the same judgment that it was not possible to com­
pare the work of a man and a woman in a very general 
framework, taking account of entire sectors of activity; com­
parisons had to be confined to the limited framework of the 
same establishment of the employer to which the case relates. 
Likewise, the comparison must relate to the specific charac­
teristics of the jobs in question, arising from the tasks actu­
ally carried out ( Macarthys, cited in footnote 27, paragraphs 
10, 14, 15 and 16). 
As regards jobs done at different places, the Macarthys judg­
ment (like the judgment in Case 69/80 Worringham and 
Humphreys [1981] ECR 767; see also the Opinion of Advo­
cate General Warner, who took the opposite view) is no 
longer of particular importance because it was based on the 
case-law beginning with the Defrenne judgment, cited in 
footnote 17, concerning the direct effect of Article 119. 
According to those judgments, Article 119 has direct effect 
only in the case of 'direct and overt discrimination' which 
may be identified solely with the aid of the criteria based on 
equal work and equal pay referred to by the article in ques­
tion, and it is not necessary for there to be more explicit 
definitions of those criteria in provisions of a Community 
or national character. In line with that case-law restricting 
the direct effect of Article 119 to direct discrimination, the 
Court refused to consider whether discrimination might 
arise on the basis of a comparative study of tasks, extending 
to entire branches of industry, because it considered that the 
discrimination in question was indirect. For the same reason, 
the Court took the view that it was not possible to make a 
comparison by reference to 'a hypothetical male worker' 
(sec Macarthys, cited in footnote 27, paragraphs 14 and 15). 
However, the Court is no longer reluctant to extend the 
direct application of Article 119 to indirect discrimination. 
It now accepts that the issue of indirect discrimination 
should be left to the national court. Likewise, on the basis 
of Article 1(2) of Directive 75/117, the physical parameters 
of a comparative study of tasks may De enlarged where 
unequal treatment is found in a sector by virtue of a collec­
tive agreement or of legislation. Sec, for example, the Opinion 
of Advocate General VerLoren van Themaat in Case 143/83 
Commission v Denmark [1985] ECR 427; Jenkins (cited in 
footnote 26), Case C-184/89 Nimz [1991] ECR I-297, Case 
171/88 Rinner-Kühn [1989] ECR 2743 and Case C-33/89 
Kowalska [1990] ECR I-2591. 
41 — Case 237/85 Rummler [1986] ECR 2101. This judgment 
refers mainly to objective criteria for determining the exist­
ence of discrimination in pay. The principle of equal pay to 
which the judgment refers primarily requires objective 
account to be taken of the nature of the work. The work 
actually carried out must be remunerated in accordance with 
its nature (paragraph 23). In Murphy (cited in footnote 36), 
the higher value attributed to the work of one of the two 
groups of workers compared is also based on the nature and 
purpose of that work. 
42 — Macarthys, cited in footnote 27, paragraph 9. 
43 — For example, in his Opinion in Jenkins (cited in footnote 
26), Advocate General Warner argued that 'equal work' and 
'the same job' were not synonymous and he concluded that 
full-time and part-time workers did not do the same job 
even though their work was 'equal'. This observation was 
linked to the question referred, which was whether the 
requirement of 'equal work' was fulfilled, that being a ques­
tion which logically precedes any other question because if 
the work done by both groups of workers could not be 
regarded as equal work or work of the same value, there 
would be no grounds for applying Article 119. The Court 
implicitly accepted that the fact that one group worked full-
time and the other part-time did not prevent that condition 
from being fulfilled. The Court found it sufficient that the 
task was the same and did not go on to consider whether 
'the same job' was involved (paragraphs 10 to 15). 
In the only case where a clear distinction was made between 
work at piece rates and work at time rates and where this 
distinction was found decisive for assessing the consequences 
of a comparative study of the average pay of two groups of 
workers (sec Royal Copenhagen, cited in footnote 21, para­
graph 25), the Court did not make a systematic analytical 
interpretation of the conditions laid down in Article 119 of 
the Treaty, although it had the opportunity to do so. In 
laying down the criteria for comparing the work done by 
the two groups of workers, the Court did not rely on the 
conceptual distinction between 'equal work' and 'the same 
job'. It referred in succession to the substantive criterion of 
the nature of the work, the formal criterion of the condi­
tions in which it is carried out, and the criterion of the 
training received by the workers. It appears from the wording 
of the judgment that the Court considered the last-mentioned 
criterion to be distinct from the others (paragraphs 32, 33 
and 42). 
I -2881 
OPINION OF MR COSMAS — CASE C-309/97 
specifically, the organic and formal aspects of 
work, which are related to the worker's phys­
ical and intellectual skills, and also the condi­
tions of employment have been examined 
only as objective criteria which may justify 
different pay for equal work. 44 
31. In my opinion, this case-law is explained 
not only by the fact that in the context of 
preliminary rulings the Court is frequently 
bound by the national court's presumption as 
to the existence of equal work or work of the 
same value. The fundamental reasoning under­
lying the case-law is that the definition of 
'equal work' and the criteria for determining 
whether there is 'equal work' or not are used 
by the Court to a large extent as the basis for 
applying the case-law relating to the burden 
of proof in the context of applying the prin­
ciple of equal pay for men and women. 
The Court has observed that the burden of 
proving sex discrimination as to pay lies with 
the person who claims that it exists, that is to 
say, the worker who believes himself to be 
the victim of such discrimination. However, 
it is clear from the case-law 45 that the burden 
of proof may be transferred to the employer 
where that is found necessary in order for a 
worker who is the victim of overt discrimina­
tion based on sex not to be deprived of the 
right to have the principle of equal pay for 
equal work applied. 46 In the case of such dis­
crimination, that is to say, where in practice a 
measure affects far more persons of one sex 
than of the other, it is now up to the employer 
(or the Member State or, generally, the person 
who adopted the measure) to prove that there 
are objective reasons justifying the difference 
in pay. 47 
Therefore the objective factors which the 
employer (or, generally, the person who is 
required to show objective justification for 
the difference in question) must rely on cannot 
relate to sex and, as the case-law shows, they 
will be connected with the service or the 
44 — With regard to the criterion of working hours (full-or part-
time), see, for example, Jenkins (cited in footnote 26). For 
the criterion of training, with which the present case is con­
cerned, see Danfoss (cited in footnote 22, paragraph 23). 
45 — Enderby, cited in footnote 16, paragraphs 13 to 19. 
46 — See also Article 4(1) of Directive 97/80 (cited in footnote 14). 
47 — Thus the Court has found that where a measure distin­
guishing between persons according to working hours affects 
a much greater number of persons of one or the other sex, 
that measure must be deemed contrary to the aims of Article 
119 of the Treaty, unless the employer proves that the mea­
sure is based on objectively justifica factors unrelated to any 
discrimination on grounds of sex (Case 170/84 Bilka [1986] 
ECR 1607, paragraph 31; Kowalaska, cited in footnote 40, 
paragraph 16, and Nimz, cited in footnote 40, paragraph 15). 
In addition, the Court has stated that, where an undertaking 
applies a system of pay which is totally lacking in transpar­
ency, it is for the employer to prove that his practice in the 
matter of wages is not discriminatory, if a woman employee 
establishes, in relation to a relatively large number of 
employees, that the average for women is less than that for 
men (Danfoss, cited in footnote 22, paragraph 16). The Court 
has also observed that where significant statistics disclose an 
appreciable difference in pay between two jobs of equal 
value, one of which is carried out almost exclusively by 
women and the other predominantly by men, Article 119 of 
the Treaty requires the employer (or, generally, the person 
who must justify the distinction) to show that the difference 
is based on objectively justified factors unrelated to any dis­
crimination on grounds of sex (Enderby, cited in footnote 
16, paragraph 19). 
I - 2882 
ANGESTELLTENBETRIEBSRAT DER WIENER GEBIETSKRANKENKASSE 
undertaking in question, 48 the conditions of 
work, 49 or, finally, necessary aims of social 
policy of the Member State concerned, the 
attainment of which makes the difference in 
pay suitable and necessary. 50 However, if it is 
accepted that the conditions of work must be 
examined, which would be logical, in connec­
tion with the preliminary question of whether 
the work in question is equal work or work 
of the same value, the only objective criteria 
which, at the later stage, could justify a dif­
ference in pay, without further reference to 
the factors already considered to determine 
whether there is equal work or work of the 
same value, will be exclusively the criteria 
connected with the needs or the specific char­
acteristics of the service or the undertaking 
where the work is carried out,51 or with 
overriding aims of social policy of the Member 
State concerned. In other words, many of the 
factors hitherto regarded as objective, which 
justify different pay for men and women and 
the existence of which must be proved by the 
employer (or the Member State or, generally, 
the person on whom the burden of proof 
lies), will henceforward be discussed in rela­
tion to the preliminary question of whether 
the work in question is equal work or work 
of the same value, on which point it is the 
worker (normally a woman) pleading dis­
crimination who has the burden of proof. An 
employer who justifiably denies that discrimi­
nation exists will therefore only have to say 
that the work in question is not equal work 
or work of the same value, by relying on one 
of those factors, without having to show that 
the particular factor is objective and is unre­
lated to discrimination based on sex. The mere 
existence of that factor will entail differentia­
tion in the type of work and will therefore 
mean that there is no discrimination contrary 
to the principle of equal pay laid down by 
Article 119 of the Treaty.52 Clearly, in this 
case, it may not prove possible (not, at any 
rate, without upsetting the case-law relating 
to the reversal of the burden of proof and 
objective justification) to verify the existence 
of many instances of 'indirect or disguised 
discrimination' which are based on neutral 
criteria connected with conditions of work or 
workers' skills, but which in practice affect 
persons of only one sex. 
32. In the light of the foregoing, and taking 
account of the facts set out in the order for 
reference of the Oberlandesgericht Wien, it 
appears that three different interpretations 
may be adopted by the Court with regard to 
the first question referred. 
48 — Bilka, cited in footnote 47, paragraph 37. 
49 — Danfoss, cited in footnote 22, with regard to length of ser­
vice, training, adaptability in general and specifically in rela­
tion to variable hours and places of work. 
50 — See, for example, Rinner-Kühn (cited in footnote 40, para­
graph 14), Gerster (cited in footnote 12, paragraph 40) and 
Case C-457/93 Lewark [1996] ECR 1-243, paragraph 36. 
Likewise the Court has considered as an objective criterion 
a policy of economic development and job creation (Case 
C-189/91 Kirsammer-Hack [1993] ECR I-6185, paragraph 
33). In contrast, the Court found that considerations of a 
budgetary nature could not be objective criteria (Case 
C-343/92 De Weerd (née Roks) and Others [1994] ECR 
1-571, paragraphs 35 and 36). 
51 — However, even these criteria, in so far as they are not merely 
of an economic nature and in so far as they may concern the 
framework in which the work is carried out, arc functional 
criteria for assessment of the work and should be examined 
in the context of the preliminary question of whether the 
work in question is equal work or work of equal value. 52 — See paragraph 21 of this Opinion. 
I - 2883 
OPINION OF MR COSMAS — CASE C-309/97 
(a) On the first interpretation, the Court may 
remain faithful to the Macarthys judg­
ment 53 and take the view that, where the 
task is the same, that is sufficient to show 
'equal work' or 'work of the same value' 
or 'the same job', even if that task is per­
formed with different professional quali­
fications arising from different training, 
and where one group of workers is quali­
fied, by virtue of the professional quali­
fication required, to perform other tasks 
in a wider field. This approach has the 
disadvantage of restricting the concept of 
'equal work' to the situation where the 
same task is carried out and of disre­
garding the semantic distinctions made in 
Article 119 of the Treaty. However, it has 
the advantage that it does not undermine 
the case-law on the distribution of the 
burden of proof. If this approach is taken 
on the facts of the present case, it will be 
clear that doctors and psychologists carry 
out equal work and have the same job 
because they perform the same task, that 
is to say, psychotherapy, on the basis of 
the training required by the Law on Psy­
chotherapy, taking account also of the 
periods of training laid down by that Law. 
In such a case, it is not really the first 
question which applies, but the sixth, as 
the German Government and the Com­
mission point out. 
(b) On the second interpretation, it is assumed 
that where both groups of workers per­
form the same duties, but have different 
professional training, the two groups do 
not have 'the same job', even if they do 
the same work, in the sense that they per­
form the same duties. Simultaneously, the 
difference in training entails a difference 
in the conditions under which the work 
is done, so that the work of each group 
does not have the same economic or quali­
tative value. 
From the conceptual viewpoint this 
interpretation is more consistent than the 
first. However, it has two fundamental 
disadvantages. Firstly, it implies that 
persons having 'the same job' cannot 
possibly have different levels of training 
and, secondly, it raises questions 
concerning the ambit of the case-law on 
the burden of proof, as I have already 
explained. If this interpretation is applied 
to the facts of the present case, it must be 
accepted that, as psychotherapists who 
are doctors and psychotherapists who are 
psychologists do not have the same 
training, the question of discrimination 
does not arise because the two groups are 
not in the same situation for the purposes 
of the Court's case-law and do not 
perform tasks of the same value. If the 
Court adopts this interpretation, it may 
refrain from replying to the subsequent 
questions from the national court because, 
in this case, the principle of equal pay for 
men and women laid down by Article 
119 of the Treaty will not apply. 53 — Cited in footnote 27. 
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ANGESTELLTENBETRIEBSRAT DER WIENER GEBIETSKRANKENKASSE 
(c) If the third interpretation, the one that I 
propose, is followed, the criterion of 
training must be regarded as applicable in 
two ways. It may be used as an objective 
criterion justifying a difference in the pay 
for equal work or work of equal value, 
and also as a criterion for comparing 
tasks. Furthermore, this position is con­
sistent with the Royal Copenhagen judg­
ment, 54 where the Court, in seeking to 
identify the factors permitting comparison 
of the situation of two groups of workers, 
observed that training is one factor for 
ascertaining whether workers are in a 
comparable situation. 5 5 In taking this 
position, the Court stated in essence that 
the training factor could be used not only 
as a criterion justifying objectively a dif­
ference in pay for equal work or work of 
the same value, as it did in the Danfoss 
case, 56 but also as a criterion for com­
paring the duties carried out by two 
groups of workers. In addition, the above-
mentioned judgment expressly confirms 
that there are two ways in which all the 
factors capable of justifying objectively a 
difference in pay and relating to the nature 
of the work and the conditions in which 
it is carried out may be applied. In par­
ticular, the Court stated that the national 
court must ascertain whether, in the light 
of the facts relating to those criteria, equal 
value may be attributed to the work in 
question or whether any pay differentials 
are objective and unrelated to discrimina­
tion on grounds of sex. 57 
33. However, if the training factor is to be 
used meaningfully in two ways, it cannot 
imply the same thing in both cases. As an 
objective criterion in relation to different pay 
for equal work or work of equal value, dif­
ferent training cannot be identified with the 
different training which, if it is found to exist, 
leads to the conclusion that two groups of 
workers do not carry out the same work or 
work of equal value. 
In the first case, the difference in training 
normally consists in qualifications at different 
levels or, generally, different levels of training. 
Here, the qualifications at different levels do 
not entail a distinction so profound that the 
occupation or job could be said to be dif­
ferent, but they may justify a difference in the 
pay for the same work. The case is similar to 
that where two workers carry out the same 
work, but one is presumed, by reason of his 
54 — Cited in footnote 21. 
55 — Royal Copenhagen, cited in footnote 21, paragraphs 32 and 
33. 
56 — Cited in footnote 22. 
57 — Royal Copenhagen, cited in footnote 21, paragraph 42. 
I - 2885 
OPINION OF MR COSMAS — CASE C-309/97 
length of service, to have greater experience 
and greater skill in fulfilling the demands of 
his work. This justifies a corresponding 
increase in pay, but it does not mean that his 
work is different. 58 
However, the difference in the level of quali­
fications may be very great or the difference 
in training may be not only quantitative, but 
also qualitative, so that the qualification in 
question is different and therefore the work 
is neither the same nor of equal value in rela­
tion to that of another group of workers who 
have not received the same training. In that 
case, the fundamentally different training, as 
the Commission puts it, may imply that the 
work has a different nature or purpose. There­
fore it may be that employees of the different 
groups perform duties with a different nature 
or purpose within the same service or under­
taking, but without doing equal work or work 
of equal value or without having the same job 
or a job of the same value, because the fun­
damental difference in training may alter 
radically the value of that work and the con­
ditions under which it is done. 
34. The fundamental nature of the difference 
is, in any case, like all the factors used to 
compare the duties at issue, a question of fact 
which must be determined by the national 
court. It must, however, base its assessment 
on the objective nature of the fundamental 
difference in training. 59 In my view, a dif­
ferent professional qualification for each group 
of workers is a legitimate objective criterion 
for determining whether there is a funda­
mental difference in training, with the conse­
quence that the person in question does com­
pletely different work or has a completely 
different job. The qualification, which deter­
mines the scope of the tasks which may be 
assigned to a worker and which is awarded 
by reference to criteria connected with the 
worker's training and skills, is an essential 
element of the work, as the Health Fund 
points out. Therefore, if two employees have 
different qualifications because their training 
was fundamentally different, it follows that 
the work or the job in question is different, 
even if the employees carry out duties which 
appear to be identical. However, if this dis­
tinction is to be made on the basis of the dif­
ferent qualifications of the persons concerned, 
the latter must be recruited and must perform 
58 — Danfoss, cited in footnote 22. However, as the Court observed 
in that case, with regard to the length of service, the condi­
tions are not the same as for the training criterion, or adapt­
ability to different working hours or places of work, because 
'length of service goes hand in hand with experience and ... 
experience generally enables the employee to perform his 
duties better' (paragraph 24). 
59 — The Court has observed that an important criterion for 
assessing the teaching and academic skills of a given category 
of university teachers or researchers is participation in an 
open competition or recognition by a national committee: 
see Case C-90/96 Petrie and Others [1997] ECR I-6527, 
paragraph 47 et seq. 
I - 2886 
ANGESTELLTENBETRIEBSRAT DER WIENER GEBIETSKRANKENKASSE 
their duties on the basis of their own quali­
fication which is related to those duties. 
35. In the present case, according to the facts 
in the order for reference, the doctors who 
work as psychotherapists appear to continue 
to practise as doctors and, if necessary, to per­
form the associated duties, unlike the gradu­
ates in psychology, who practise only as psy­
chotherapists. Furthermore, as the 
Commission and the Health Fund point out 
in their observations, the doctors can make 
use of all their knowledge in looking after 
patients and that is why the Health Fund 
concludes with them contracts governed by 
Staff Regulation B, irrespective of the exact 
duties they perform. Consequently, according 
to the abovementioned facts, which must ulti­
mately be clarified by the national court if 
necessary, if the training of the two groups of 
employees is fundamentally different and that 
difference is confirmed by different qualifica­
tions, the two groups do not carry out equal 
work or have the same job. Even though their 
duties, considered by reference to the pur­
pose thereof, appear to be the same, that is to 
say, psychotherapy, the persons concerned 
possess fundamentally different knowledge 
and experience, and therefore fundamentally 
different therapeutic skills, and this has a sig­
nificant influence on the work they perform. 
The fact that the work is invoiced at the same 
rate by the Health Fund does not necessarily 
preclude that finding because there is nothing 
to show that the invoices are based on the 
quality or actual market value of the treat­
ment provided by each group of psychothera­
pists, and the invoicing may be based on con­
siderations of social policy. 
36. Therefore I propose that the Court's reply 
to the first question be that Article 119 of the 
Treaty 60 must be interpreted as meaning that 
there is not 'equal work' or 'the same job' 
where employees have different professional 
qualifications because they have received fun­
damentally different training, and perform the 
same duties over a considerable length of time 
(several salary periods), if those employees 
are recruited on the basis of those qualifica­
tions and if the qualifications relate to the 
duties which they perform. 
37. In view of the facts set out in the order 
for reference, if the Court agrees with the 
reply proposed above, it is unnecessary to 
reply to the other questions, unless for the 
sake of completeness, because the question of 
applying the principle of equal pay laid down 
in Article 119 of the Treaty no longer arises. 
C — The sixth question 
38. I now wish to discuss the sixth question, 
as it is connected with the first. The Ober-
landesgericht Wien asks whether, where 
60 — In the reply it is sufficient to refer to Article 119 of the 
Treaty and it is not necessary to add a reference to Directive 
75/117: see Macarthys, cited in footnote 36, paragraph 13, 
and paragraph 23 of this Opinion. 
I -2887 
OPINION OF MR COSMAS — CASE C-309/97 
employees perform the same duties in an 
establishment, a difference in training is to be 
regarded as a factor justifying a difference in 
pay. It also asks whether, irrespective of the 
duties actually performed, more extensive pro­
fessional qualifications are to be regarded as 
an objective factor justifying a difference in 
pay. This leads to the further question of the 
decisive factor in that connection: (a) is the 
fact that the higher-paid group of employees 
can be used for other duties in the establish­
ment a decisive factor, or (b) is actual proof 
of performance of other duties essential? 
Finally, the national court asks whether 
account is to be taken of the fact that the rel­
evant rules in the collective agreement pro­
vide for protection against arbitrary dismissal. 
39. First of all, it must be observed that the 
problems raised by the sixth question arise 
only if both groups of employees, in this case 
doctors and psychologists both practising psy­
chotherapy, carry out equal work or work of 
the same value, or have the same job. Bearing 
in mind, however, the discussion of the pre­
vious question, the sixth question is justified 
in only two cases: (a) if the Court adopts the 
first interpretation, to the effect that per­
forming the same duties is sufficient for there 
to be 'equal work' or 'work of equal value' or 
'the same job'; (b) if, in accordance with the 
third interpretation, the Court takes the view 
that, even if they have different qualifications, 
employees of the different groups assigned to 
the same duties in the same establishment 
have not received fundamentally different 
training, such as to justify the conclusion that 
they carry out different work or have a dif­
ferent job. The Court has held 61 that in such 
cases the national court, applying the prin­
ciple of proportionality if necessary, has sole 
jurisdiction to assess whether the reasons put 
forward by the employer (or any other person 
on whom the burden of proof lies) to justify 
overt discrimination in pay between two 
groups of male and female workers or a pay 
practice which applies irrespective of the 
worker's sex, but which in practice affects 
more women than men, are based on objec­
tive criteria for a pay differential which are 
unrelated to sex discrimination. 
40. The Court has held that those criteria 
include the training factor, meaning that the 
best-paid training is relevant to the perfor­
mance of specific tasks entrusted to the 
employee, and the adaptability factor, meaning 
that an increase in pay is justified by willing­
ness to adapt to changing hours and places of 
work, where the employer shows that such 
adaptability is relevant to the performance of 
specific tasks entrusted to the employee, but 
not if that factor relates to the quality of the 
61 — Enderby, cited in footnote 16, paragraphs 18, 19 and 25, and 
Bilka, cited in footnote 47, paragraphs 35 and 36. 
I -2888 
ANGESTELLTENBETRIEBSRAT DER WIENER GEBIETSKRANKENKASSE 
work done by the employee. 62 That was the 
effect of the Court's judgment, although it 
considered, first, that the training factor might 
work to the disadvantage of female employees 
in so far as they have less opportunity than 
men for further training or take less advan­
tage of such opportunity and, secondly, that 
the criterion of flexibility, understood as cov­
ering the employee's adaptability to changing 
hours and places of work, may also work to 
the disadvantage of female employees who, 
because of household and family duties, are 
not as free as men to organise their working 
time flexibly. 63 
41. In my opinion, the criterion of flexibility 
accepted by the Court in Danfoss 6 4 must also 
cover the idea of adaptability to the perfor­
mance, in one and the same establishment, of 
different duties covered by the qualification 
held by the person concerned. Such flexibility 
is by nature absolutely neutral in relation to 
sex or, at least, is no different from the crite­
rion of flexibility in the sense already accepted 
by the Court. By comparison with the rea­
soning in Danfoss, it is no more difficult for 
women to perform other, related, duties than 
to adapt to different working times in so far 
as such other duties do not necessarily entail 
a change in working times. 
42. Clearly, the other, related, duties covered 
by the employee's qualifications must also be 
covered by the employment relationship. In 
other words, the employee must be recruited 
on the basis of his professional qualifications, 
that is to say, on the basis of the ability to 
perform several tasks in the establishment or 
undertaking. In the present case, therefore, 
the national court must ascertain whether, as 
stated by the Health Fund in the course of 
the oral procedure, the doctors were appointed 
as doctors — and not merely paid as doctors 
— whether they occasionally practise psy­
chotherapy in the particular establishments to 
which they are assigned or were appointed 
exclusively as doctors to practise psycho­
therapy. 65 
43. Finally, it must be observed that the cri­
terion of adaptability to different tasks in the 
same undertaking, which is based on the pro­
visions protecting employees against arbitrary 
dismissal, does not conflict with the require­
ment that the objective criterion of differen­
tiation should meet a real need of that estab­
lishment or undertaking. 66 'Real need' means 
not only present needs, but also future needs 
which are bound to arise. In the present case, 62 — Danfoss, cited in footnote 22, paragraphs 17 to 25, which 
states that application of the abovementioned criteria is sub­
ject to the requirement that they are not based on generalisa­
tions about certain categories of workers, but arc objective, 
which depends on the circumstances of each case and, above 
all, their relationship with the nature of the work performed. 
Regarding this requirement, see Rinner-Kühn, cited in foot­
note 40, paragraph 14, and Nimz, cited in footnote 40, para­
graphs 13 to 15, which, contrary to the observations of the 
Staff Committee, do not deny that the training criterion is 
legitimate and objective. 
63 — Danfoss, cited in footnote 22, paragraphs 21 and 23. 
64 — Cited in footnote 22. 
65 — On this point, it may be appropriate also to consider the 
other problems connected with the possibility of performing 
several related tasks. For example, it may be appropriate for 
the national court to consider whether medical ethics permit 
doctors practising in a specialist field (for example, psychia­
trists who, in the present case, arc employed as psychothera­
pists) to practise in another. 
66 — Bilka, cited in footnote 47, paragraph 36. 
I - 2889 
OPINION OF MR COSMAS — CASE C-309/97 
the establishment of employees in their post 
after ten years means that there will be an 
undoubted future need for adaptability and 
flexibility on the part of employees in the 
undertaking. 
44. However, is the question whether the 
employee actually uses at all times all the 
capabilities he has by virtue of his profes­
sional qualifications decisive? 
As it stands, the Court's case-law does not 
appear to say that it is. According to Dan­
foss, 67 the criteria of training and adaptability 
to varying hours and varying places of work 
must be relevant to the performance of spe­
cific tasks entrusted to the employee. 68 This 
does not necessarily mean that in every case 
all the duties permitted by professional 
training or by the ability to adapt must be 
actually performed. As also appears from the 
Opinion of Advocate General Lenz, the con­
dition laid down in Danfoss simply means 
that training and adaptability must be objec­
tively related to the duty in question, that is 
to say, they must relate to the work 
done. 69 
Furthermore, in Macartbys 70 the Court states 
that 'in cases of actual discrimination falling 
within the scope of the direct application of 
Article 119, comparisons are confined to par­
allels which may be drawn on the basis of 
concrete appraisals of the work actually per­
formed by employees of different sex within 
the same establishment or service'. 71 In the 
present case, however, the requirement that 
duties be actually performed does not relate 
to the problem raised by the main proceed­
ings with which we are concerned here, but 
is connected with the Court's refusal to allow 
a comparison between a female employee and 
a 'hypothetical male employee', in the sense 
that the former could not claim the pay which 
she could demand if she were a man, even 
though no man was doing or previously did 
the same work. The present case does not 
involve the question of the 'hypothetical male 
employee', which is bound up with the spe­
cial features of the Macarthys case, 72 but the 
problem of a male employee who can, by 
reason of his training and, above all, his pro­
fessional qualifications, perform in the same 
establishment several duties related to that 
which he carries out at any given time. 
In my view, therefore, not only more advanced 
training, but also a different professional quali­
fication entitling the holder to perform sev­
eral related duties in one and the same estab­
lishment constitute an objective criterion for 
a difference in pay, in conformity with the 
67 — Cited in footnote 22. 
68 — See paragraph 40 of this Opinion. 
69 — See the Opinion of Advocate General Lenz, cited in foot­
note 22, paragraph 43. 
70 — Cited in footnote 27. 
71 — Paragraph 15. 
72 — See paragraph 40 of this Opinion. 
I - 2890 
ANGESTELLTENBETRIEBSRAT DER WIENER GEBIETSKRANKENKASSE 
requirements laid down in Danfoss, 73 regard­
less of whether the employee actually exer­
cises at all time all the options given to him 
by the qualifications in question. 
45. That view is consistent with the principle 
of equality. Since two groups of employees 
performing the same duties are not objec­
tively in a similar professional situation in 
relation to the economic needs of the estab­
lishment and to the tasks entrusted to them, 
it is legitimate to pay them a different salary 
on the basis of proportionate equality. Thus, 
in the present case, in so far as it has been 
shown that they have an obligation to give 
first aid under Paragraph 21 of the Law on 
Medical Practice and that they may prescribe 
medicines and, if necessary, be assigned to 
other areas of health care, depending on their 
specialisation, it is logical that the doctors' 
pay should differ from that of psychologists 
who, by reference to the diverse services pro­
vided in the field of health care by a health 
fund such as the respondent, appear to be 
able to perform tasks of only limited scope 
by comparison with doctors. 
46. That view is also justified on grounds of 
expediency connected with the job market. If 
employees who do not possess the necessary 
training or the appropriate qualification to 
enable them to carry out different duties if 
the need arose in the establishment received 
the same pay as those with such training or 
qualifications, the result would be that the 
establishment would recruit only employees 
of the second group. In the present case, why 
should the Health Fund in the future appoint 
psychologists as psychotherapists if it has to 
pay them the same as doctors even though 
they cannot be used for as many purposes as 
a qualified doctor, and why should the Fund 
not recruit only doctors who can also per­
form the duties of psychologists? If their 
respective pay were made equal, the conse­
quences would ultimately be adverse for the 
group of employees whose pay would ini­
tially be increased. 74 
47. Therefore, in so far as the sixth question 
calls for a reply, I propose that the Court 
reply that, where there is overt discrimination 
in the matter of pay between two categories 
of men and women at work or a pay practice 
73 — Judgment cited in footnote 22. 
74 — These considerations should not lead to the conclusion that 
the work of doctors, or their training, is bound to be of a 
qualitatively higher level than that of psychologists. The fact 
that they are different does not necessarily mean that they 
are better. Moreover, it is well-known that, in the context of 
psychotherapy, psychologists use methods of diagnosis and 
treatment (for example, tests) with which psychiatrists, and 
particularly doctors who are not specialists in psychiatry, are 
not generally familiar. Likewise, generally speaking, psy­
chologists can probably perform duties other than psycho­
therapy. In the present case, however, it is significant that, 
having regard to the health-care services offered by a health 
fund such as the respondent in the main proceedings and 
given the professional training which they have received, 
doctors appear to be employable, within that Fund, in more 
areas, and this clearly makes them more competitive than 
psychologists in the job market, as the Health Fund points 
out. However, it is for the national court, which is familiar 
with the national legislative framework and the facts of the 
main proceedings, to assess the extent to which doctors can 
be employed in more areas and their more competitive posi­
tion in the job market. 
I - 2891 
OPINION OF MR COSMAS — CASE C-309/97 
which is applied irrespective of sex, but which 
in actual fact affects more women than 
men: 
— the employer may justify the difference in 
pay by reference to the criterion of pro­
fessional training, if he shows that it is 
relevant to the specific tasks entrusted to 
the employee; 
— the employer may justify the difference in 
pay by reference to the criterion of pro­
fessional qualifications enabling the person 
concerned to perform several different 
tasks in the establishment, if the employer 
shows that that criterion is relevant to the 
specific tasks entrusted to the employee 
or may meet the establishment's need to 
assign employees to duties which differ 
from those already performed and which 
are covered by the qualification and the 
employment relationship, taking account 
of the provisions of collective agreements 
protecting employees against dismissal. 
D — The second question 
48. The second question asked by the Ober-
landesgericht Wien is whether, in determining 
whether there is discrimination for the pur­
poses of Article 119 of the Treaty or Direc­
tive 75/117/EEC, decisive importance must 
be attached to the type of collective agree­
ment governing pay (mandatory, non-
mandatory or mandatory with fixed minimum 
levels of pay). 
49. At first sight it seems that, as the Com­
mission states in its observations, the choice 
between three types of collective agreement is 
irrelevant on the facts here, because the staff 
regulations were adopted in the form of col­
lective agreements laying down a method for 
fixing pay, which binds the various social 
insurance institutions in so far as they may 
alter the agreements only with the written 
consent of the General Association of Aus­
trian Social Insurance Institutions, which drew 
up the collective agreements (Paragraph 460 
of the ASVG). 75 
However, even if the choice among the three 
types of collective agreement is a hypothetical 
one, the Court is asked to reply to the ques­
tion whether the mandatory type of 
75 — For the Court's refusal to reply to hypothetical questions, 
see Case C-83/91 Meilicke [1992] ECR I-4871, paragraph 
25. 
I - 2892 
ANGESTELLTENBETRIEBSRAT DER WIENER GEBIETSKRANKENKASSE 
collective agreement, that is to say, the type 
applicable in the main proceedings, is relevant 
when determining whether there is discrimi­
nation. The Court must therefore also examine 
the other types (non-mandatory, mandatory 
with fixed minimum levels of pay) in so far 
as this helps to establish the special features 
of the mandatory type. Consequently, the 
reply to the second question does not depend 
on whether the choice in question is described 
as hypothetical. 
50. It must also be observed that the wording 
of the second question presents certain prob­
lems. It is not quite clear whether the national 
court is asking whether the existence of dis­
crimination with regard to pay, for the pur­
pose of Article 119 of the Treaty, depends on 
the nature of the system of collective agree­
ments governing the pay of two different 
groups, or whether it is asking if that system 
must be taken into account in determining 
the standards applicable for a rinding of dis­
crimination contrary to Article 119. 
51. With regard to the connection between 
the existence of discrimination for the pur­
pose of Article 119 and the type of the col­
lective agreement, the Court's case-law, to 
which the order for reference refers, suggests 
that the reply must be in the negative. The 
prohibition on discrimination between men 
and women applies not only to the action of 
public authorities but also extends to all col­
lective agreements regulating paid labour, as 
well as to contracts between individuals. 76 
The principle of the independence of will of 
the parties to a collective agreement could not 
therefore prevent the application of the prin­
ciple of equal pay laid down in Article 119, 
regardless of the nature of the collective agree­
ment (mandatory, non-mandatory or manda­
tory with fixed minimum levels of pay). 
52. Therefore, if the Court considers that the 
meaning of the question is as stated above, I 
propose that the Court reply that for a finding 
of discrimination for the purposes of Article 
119 of the Treaty or Directive 75/117 it is not 
material (a) that pay is determined exclusively 
by the parties to the employment contract, 
that is to say, they may decide whether to 
have the terms of the collective agreements 
incorporated therein, (b) that mandatory min­
imum levels of pay for every employee in 
a particular field are fixed by general rules 
(collective agreements), or (c) that pay is 
mandatorily governed entirely by collective 
agreements. 
53. On the other hand, if the Court considers, 
in accordance with the interpretation which I 
have suggested, that the question also touches 
on the effect of the type of collective 
76 — See Artide 4 of Directive 75/117, cited in paragraph 4 of this 
Opinion. See also Royal Copenhagen (cited in footnote 21, 
paragraph 45), Defrenne judgment (cited in footnote 17, 
paragraph 39), Kowalska (cited in footnote 40, paragraph 
12), Nimz (cited in footnote 40, paragraph 11) and Enderby 
(cited in footnote 16, paragraph 22 et seq.). According to the 
judgment in Case C-262/88 Barber [1990] ECR I-1889, 
paragraph 32, Article 119 of the Treaty prohibits any dis­
crimination with regard to pay as between men and women, 
whatever the system which gives rise to such inequality. 
I - 2893 
OPINION OF MR COSMAS — CASE C-309/97 
agreement on the creation of the framework 
in which the discriminatory conditions are 
laid down, the Court will have an opportu­
nity, in view of the facts of the main proceed­
ings, to clarify certain points concerning the 
application by the national court of the prin­
ciple set out in Article 119 to collective agree­
ments, such clarification being important for 
the main proceedings and also having a bearing 
upon the replies to the other questions referred 
by the national court. 
54. The fact that the pay of two groups is 
determined by collective agreements affects 
the framework for the application of the prin­
ciple of equal pay set out in Article 119 of the 
Treaty. In such a case, the national court must 
go further than the circumstances of a par­
ticular establishment and proceed to assess 
the circumstances which, in the matter of 
employment, depend on collective agree­
ments. Furthermore, in the case of collective 
agreements for a whole sector, the parties, 
when fixing pay, normally take account not 
only of the specific work, but also of other 
factors such as the employment market gen­
erally or locally, the economic needs of under­
takings in different sectors, and the size and 
the role of the different trade unions in the 
particular sector. Therefore the pay of each 
group of workers must be assessed, not by 
reference to their actual work in the under­
taking, but, as the German Government 
observes, by reference to the formal charac­
teristics of the work, which may be described 
by the job classification system laid down by 
the collective employment agreement in the 
context of the pay policy adopted. 77 The need 
to go beyond the specific undertaking and 
refer to the pay classification system laid 
down by the collective employment agree­
ment becomes even more important where 
the agreement provides, as in the present case, 
for a definitive and mandatory pay system 
which leaves the employer with no power to 
differentiate on the basis of an individual con­
tract of employment. 78 In this case, the col­
lective agreement is the source of the objec­
tive criteria which may justify differences in 
pay. The Court has observed that 'the fact 
that the rates of pay have been determined by 
collective bargaining or by negotiation at local 
level may be taken into account by the national 
court as a factor in its assessment of whether 
differences between the average pay of two 
groups of workers are due to objective fac­
tors unrelated to any discrimination on 
grounds of sex'. 79 
55. It could also be argued that, where the 
pay of two groups is covered by two dif­
ferent collective agreements, the groups are 
probably not in similar or comparable situa­
tions. Moreover, Advocate General Lenz has 
77 — According to the Rummler judgment (cited in footnote 41, 
paragraph 15), 'even where a particular criterion ... may in 
fact tend to favour male workers ... it must, in order to 
determine whether or not it is discriminatory, be considered 
in the context of the whole job classification system, having 
regard to other criteria influencing rates of pay. A system is 
not necessarily discriminatory simply because one of its cri­
teria makes reference to attributes more characteristic of 
men'. 
78 — But see the judgment in Case 165/82 Commission v United 
Kingdom [1983] ECR 3431. The Court stated that binding 
collective agreements also have important de facto conse­
quences for the employment relationship to which they refer, 
particularly in so far as they determine the rights of the 
workers and, in the interests of industrial harmony, lay down 
the limits which must be imposed on the requirements of 
undertakings. 
79 — See Royal Copenhagen (cited in footnote 21, paragraph 46). 
I - 2894 
ANGESTELLTENBETRIEBSRAT DER WIENER GEBIETSKRANKENKASSE 
observed that, where pay is determined by 
collective agreements for each sector, the fact 
that employees are in two different sectors 
may justify the conclusion that the require­
ment of equal work or work of equal value is 
not fulfilled.80 However, the Court has devel­
oped certain criteria concerning the manner 
in which a national court should assess the 
fact that details of pay for two groups of 
employees are determined by collective agree­
ments. For example, in Enderby,81 the Court 
stated that 'the fact that the rates of pay at 
issue are decided by collective bargaining pro­
cesses conducted separately for each of the 
two professional groups concerned, without 
any discriminatory effect within each group, 
does not preclude a finding of prima facie 
discrimination where the results of those pro­
cesses show that two groups with the same 
employer and the same trade union are treated 
differently. If the employer could rely on the 
absence of discrimination within each of the 
collective bargaining processes taken separ­
ately as sufficient justification for the differ­
ence in pay, he could ... easily circumvent the 
principle of equal pay by using separate bar­
gaining processes'. 82 
56. As the German Government has observed, 
it is important for the national court to estab­
lish whether the collective agreements laying 
down the pay scales of certain occupations 
were drawn up by the same parties. If dif­
ferent stipulations of collective pay agree­
ments are to be found comparable for the 
purpose of Article 119 of the Treaty, the 
contracting parties must be the same and the 
economic sector covered by the agreements 
in question must be the same. In the present 
case, it is clear from the order for reference 
that all the staff regulations were adopted by 
the General Association of Austrian Social 
Insurance Institutions and cover the same 
economic sector, that is to say, social insur­
ance institutions, and during the oral proce­
dure the parties to the main proceedings both 
admitted that the agreements in question had 
been drawn up by the same parties. In any 
case, however, it is still incumbent on the 
national court, which has the best informa­
tion on the legal context and the facts of the 
case before it, to determine whether the above-
mentioned requirements are fulfilled. 
57. Therefore I propose that the Court give 
the following reply to the second question: 
the prohibition on discrimination between 
men and women applies not only to public 
authorities but also extends to all collective 
agreements regulating paid labour, as well as 
to contracts between individuals. However, 
the fact that the rates of pay of two groups 
of employees were the result of collective 
bargaining processes may be taken into 
account by the national court as a factor in 
assessing how far differences in pay are due 
to objective factors unrelated to discrimina­
tion on grounds of sex. Likewise, the fact that 
each group is covered by a different collec­
tive agreement may be taken into account by 
the national court as a factor in assessing how 
far the two groups may be regarded as being 
in similar situations. Finally, the national court 
80 — Sec the Opinion in the Enderby case (cited in footnote 16, 
paragraphs 44 to 46) and in the Danfoss case (cited in foot­
note 22, paragraph 46). 
81 — See the judgment cited in footnote 16. 
82 — Paragraph 22. 
I - 2895 
OPINION OF MR COSMAS — CASE C-309/97 
may take particular account of whether col­
lective agreements relate to the same eco­
nomic sector, whether they were concluded 
by the same parties and whether they lay 
down a definitive and mandatory system for 
determining rates of pay. 
E — The third, fourth and fifth questions 
58. The third question referred by the national 
court concerns the composition of the groups 
to be compared (the persons actually employed 
in the undertaking, the employees covered by 
the collective agreement, all the persons with 
the qualifications in question) for the purpose 
of determining whether there is discrimina­
tion, where a collective agreement provides 
that pay for the same work or for work of 
equal value is to vary according to the em­
ployee's professional qualifications. The fourth 
question asks whether the relevant propor­
tion of men to women is that in the disad­
vantaged group only, or that in both groups. 
Finally, still in the context of the problems 
touched upon by the third question, the fifth 
question asks about the exact groups to be 
compared in each context, where the same 
duties which both groups perform represent 
only some of the duties covered by the rel­
evant professional qualification. I think it will 
be expedient to consider these questions 
together as they all relate to the context 
and the composition of the groups to be 
compared for the purpose of determining 
whether there is indirect discrimination. 
59. Let me begin with a few general observa­
tions. In the case of indirect discrimination, 
the Court's case-law shows that the context 
and the composition of the groups to be 
compared for the purpose of determining 
whether there is indirect discrimination not 
only may, but also must, be subject to certain 
conditions. 83 This is reasonable because, if 
the comparison is to be relevant, it must 
involve representative groups of workers as it 
would be unacceptable simply to endorse a 
choice which is deliberately designed to sup­
port the argument of one of the parties. In 
any case, clearly, whether the comparison is 
relevant is a question of fact and within the 
exclusive competence of the national courts, 84 
which, of course, does not prevent the Court 
of Justice from laying down certain criteria to 
guide the national courts in their assessment. 
60. The first criterion regarding the composi­
tion of the groups to be compared can only 
83 — See Enderby (cited in footnote 16, paragraph 17) and Dan­
foss (cited in footnote 22, paragraph 16). 
84 — See the Opinion of Advocate General Léger in Royal Copen­
hagen (cited in footnote 21, paragraphs 28 to 30). 
I - 2896 
ANGESTELLTENBETRIEBSRAT DER WIENER GEBIETSKRANKENKASSE 
be the context in which the group is formed. 
The Court's case-law shows that there is no 
general rule, but the context is determined 
according to the circumstances of each case. 
As the German Government points out in its 
observations, the decisive factor is the scope 
of the rules in question which are suspected 
of giving rise to discrimination for the pur­
pose of Article 119 of the Treaty. Further­
more, the principle of equal pay laid down by 
Article 119 is clearly aimed at the body 
responsible for adopting the rules in question. 
Consequently, if they appear in a law, the 
groups to be compared must consist of all the 
employees whose pay is governed by that law. 
Similarly, if the rules are the result of a deci­
sion or a practice of a given employer, the 
groups to be compared must consist of all the 
employees of the employer in question. 
61. Regarding the context of the groups to be 
compared for determining whether discrimi­
nation exists, it follows from what has already 
been said that the conclusions reached con­
cerning the second question are of decisive 
importance, having regard to the facts set out 
in the order for reference. The fact that, firstly, 
the pay scales of the two groups, that is to 
say, doctors and psychologists, are deter­
mined by collective employment agreements 
and, secondly, those agreements, which are 
concluded by General Association of Aus­
trian Social Insurance Institutions, are binding 
on the various social insurance institutions, 
on the basis of the conditions laid down in 
Paragraph 460 of the ASVG, and apply to 
those institutions as internal staff regulations, 
indicates that the groups of workers to be 
compared must be formed in the context of 
the collective agreements in question, not in 
the context of the institution concerned. 85 As 
the Commission observes, if account were 
taken of all the employees having the quali­
fications in question, the groups to be com­
pared would be so heterogeneous that it would 
be pointless to compare them. Moreover, at 
that level the problem of discrimination would 
not arise. 
62. Therefore I propose that the Court reply 
as follows to the third question: where a col­
lective agreement provides that pay for the 
same work or for work of equal value is to 
vary according to the employees' professional 
qualifications, which is to serve as the criter­
ion for forming the groups to be compared 
for the purpose of determining whether a 
particular measure gives rise to discrimina­
tion, the employees to be taken into account 
are those covered by the collective agreement. 
63. With regard to the fourth question, the 
Court's case-law appears at first sight to have 
reached different conclusions depending on 
the particular case, as the national court points 
85 — However, it is important for the national court to establish 
whether the fund or the undertaking in question takes spe­
cific steps (practices, assignments, etc.) to determine which 
doctors (according to their specialisation) or psychologists 
will be recruited and will practise psychotherapy, so that the 
permanent difference in pay of men and women is essen­
tially the result of those steps. 
I - 2897 
OPINION OF MR COSMAS — CASE C-309/97 
out in the order for reference. For example, 
in Jenkins, 86 the Court merely examined the 
category suffering discrimination, i. e. part-
time workers, 87 whereas in Enderby 88 it com­
pared two groups of workers, speech thera­
pists and pharmacists, one consisting almost 
exclusively of women and the other almost 
exclusively of men. 89 
In my opinion, these differences in the case-law 
are due to the fact that, depending on the cir­
cumstances of each case, the Court, in order 
to satisfy itself of the existence of indirect 
discrimination, not only examines statistical 
data relating to the groups compared, which 
by nature are liable to fluctuate and may in 
general be unreliable, but also requires its 
conclusions to be supported on grounds which 
are as objective as possible. 90 More particu­
larly, in Jenkins, the Court found that dis­
crimination against women was shown by the 
fact that the ostensibly objective justification 
for different pay because of the number of 
working hours could entail such discrimina­
tion because it was difficult for women, by 
reason of household and family duties, to 
work on a full-time basis. 91 This finding, 
which reflects normal experience, is the objec­
tive basis of the judgment concerning indirect 
discrimination. According to the reasoning in 
that judgment, where an objective criterion of 
that kind exists, it may not be necessary to 
ascertain the proportion of men and women 
in the two groups of employees. In such a 
case, discrimination, even if it has the formal 
characteristics of indirect discrimination, is in 
essence much more likely to be regarded as 
direct discrimination because membership of 
the occupational group in question is deter­
mined at the outset on the basis of sex. There­
fore it is sufficient for the national court to 
find that discrimination exists in an occupa­
tion which is, by nature, a ‘female occupa­
tion', so that it is unnecessary to compare the 
two groups. 92 In contrast, where indirect dis- . 
crimination cannot be proved by the nature 
of the professional group, as in Enderby, the 
'female' or 'male' nature of the occupation 
will be shown by a statistical analysis of one 
of the groups of employees in question, and 
that analysis must always be compared with 
that of the other group. 93 
86 — See the judgment cited in footnote 26. 
87 — Paragraph 9 et seq., in particular paragraph 15. See also 
Kowalska, paragraph 16, and Nimz, paragraph 15, both cited 
in footnote 40. The Bilka judgment (cited in footnote 46, 
paragraph 29) examines only the favoured category, i. e. full-
time workers. 
88 — See the judgment cited in footnote 16. 
89 — Paragraphs 15 to 19; see also Royal Copenhagen (cited in 
footnote 21, paragraph 28). 
90 — See my Opinion in Seymour-Smith and Perez, cited in foot­
note 15, paragraphs 113, 114 and 119. With regard to the 
coexistence of an examination of statistical data and of 
objective factors which may justify a difference in treatment, 
see the Helmis judgment, cited in footnote 13, paragraphs 
23 to 25, which refers to Bilka, cited in footnote 47. 
91 — Paragraph 13. See Danfoss, cited in footnote 22, paragraph 
21. 
92 — According to the judgment in Case C-177/88 Dekker [1990] 
ECR 1-3941, paragraphs 12 and 17, a comparison is unneces­
sary where the criterion is specifically connected with sex, 
that is to say, where, for example, it could never refer to men 
(if the criterion is pregnancy), whereas it is necessary if dis­
crimination can be justified only by a comparison of dif­
ferent treatment of men and women. 
93 — See the Opinion of Advocate General Lenz in Enderby (cited 
in footnote 16, paragraphs 30 and 31). 
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ANGESTELLTENBETRIEBSRAT DER WIENER GEBIETSKRANKENKASSE 
Therefore, unlike the national court which, in 
the order for reference, states that, if one 
group of workers can be regarded as a typical 
case from the viewpoint of working condi­
tions (as in the case of full-time workers), in 
principle it is sufficient to examine the pro­
portion of men and women in the group suf­
fering discrimination, whereas in all other 
cases the two groups must be compared, I 
think that, according to the Court's case-law, 
it is sufficient to examine the proportion of 
men and women in the group suffering dis­
crimination only where an objective factor, 
normally the fact that membership of the 
group is determined at the outset on the basis 
of sex, indicates that, by reason of its nature, 
that group corresponds to a purely female or 
male occupation. 
64. In any case, even where the Court appears 
to be satisfied with examining the group suf­
fering discrimination, a comparative analysis 
of the data relating to the two groups cannot 
be ruled out. 
65. The need for a comparative analysis of 
the proportion of men and women in the two 
groups arises, first and foremost, from the 
fact that, in order to find that a provision is 
'in principle' contrary to the principle of equal 
treatment, the Court requires the percentage 
of women in the group suffering discrimina­
tion to be 'much higher' than the percentage 
of men and/or requires the percentage of 
women in the favoured group to be 'much 
lower' than the percentage of men. 94 As I 
stressed in my Opinion in Seymour-Smith 
and Perez, 95 to ascertain whether there is a 
'significant difference' in the percentages in a 
group, the composition of the other group 
must also be taken into account. The other 
group must show a contrary trend, or iden­
tical percentages, or the same trend but much 
less marked than in the first group. If the per­
centage difference is the same or similar in 
both groups, the workers in the two groups 
are being treated in the same way and not 
unequally. 96 
66. Secondly, as the existence of indirect dis­
crimination is a rebuttable presumption, the 
presence of a higher percentage of women 
not only in the group suffering discrimina­
tion, but also in the favoured group, is logi­
cally material evidence that the difference in 
question is objective and unrelated to dis­
crimination on grounds of sex, which is a 
factor upon which the employer can rely. 97 
Obviously, it could be objected that in that 
94 — For the category of full-time workers, see Bilka (cited in 
footnote 47, paragraph 29). 
95 — Cited in footnote 15. 
96 — See footnote 50 of my Opinion in Seymour-Smith and Perez, 
cited in footnote 15. 
97 — See Kowalska (paragraph 16) and Nimz (paragraph 15), both 
cited in footnote 40. 
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OPINION OF MR COSMAS — CASE C-309/97 
case it is incumbent on the employer, not the 
employee, to prove the proportion of men 
and women in the second group. Therefore 
the decision whether, in each case, the pro­
portion of men and women in both groups 
must be analysed may depend on the burden 
of proof of discrimination. However, this 
observation does not appear to run counter 
to the need in principle to compare the pro­
portion of men and women in both groups of 
workers. As I have already said, where the 
Court has merely examined the data on the 
group suffering discrimination, there was 
objective proof of indirect discrimination, 
based on common experience, and such proof 
generally confirms the original certainty con­
cerning the data drawn from statistical analysis 
of the two groups. Comparative analysis of 
the proportion of men and women in the two 
groups is the rule, which applies in all cases 
of doubt, whereas examination of only one 
group is the exception. Furthermore, com­
parative analysis of the proportion of men 
and women in the two groups accords with 
the fundamental principle governing evidence 
of discrimination, based on comparing repre­
sentative groups of workers, a principle which 
makes the choice of only one group unac­
ceptable because it may be thought that it 
was made for the purposes of the case, that is 
to say, to support the arguments of one of the 
parties. 
67. Therefore, irrespective of the existence of 
objective criteria which may lead to the con­
clusion that an occupation or a criterion is by 
nature 'female', it is appropriate for the 
national court to carry out a comparative 
analysis of the proportion of men and women 
in each group. In the present case, I think 
that, having regard to the foregoing observa­
tions, the question of choice does not arise. 
The profession of psychologist-
psychotherapist cannot, on the basis of the 
conditions for practising it, be described as 
purely female by nature, while the criterion 
of psychologist's or doctor's qualifications 
may in principle be regarded as objectively 
neutral as regards sex, in so far as both pro­
fessional groups require a high level of pro­
fessional training, so that the differences 
between them cannot be assumed to arise 
from the fact that women have had less oppor­
tunity than men for training or have taken 
less advantage of such opportunity. 98 
68. I think that the Court should reply to the 
fourth question as follows: as regards proof 
of indirect discrimination in a situation such 
as that described by the second and third 
questions, the proportion of men and women 
in both groups, that is to say, the group suf­
fering discrimination and the favoured group, 
is always decisive. 
69. After ascertaining the proper context for 
comparing the groups of workers, the national 
98 — See Danfoss (cited in footnote 22, paragraph 23). 
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ANGESTELLTENBETRIEBSRAT DER WIENER GEBIETSKRANKENKASSE 
court must delimit those groups carefully, 
which is the problem raised by the fifth ques­
tion referred by the national court. The Court 
of Justice has to a large extent laid down the 
criteria for such delimitation, so that the 
choice and the composition of the groups is 
not the result of chance and the groups can 
be compared. Therefore, according to the 
Royal Copenhagen judgment, 99 which sum­
marises the Court's prior case-law, 'consider­
ation of whether the principle of equal pay 
has been observed requires a comparison 
between the pay of workers óf different sexes 
for the same work or for work to which equal 
value is attributed. Where such a comparison 
involves the average pay of two groups of 
workers paid by the piece, it must in order to 
be relevant encompass groups each comprising 
all the workers who, taking account of a set 
of factors such as the nature of the work, the 
training requirements and the working condi­
tions, can be considered to be in a compa­
rable situation. The comparison must more­
over cover a relatively large number of 
workers 100 in order to ensure that the differ­
ences found are not due to purely fortuitous 
or short-term factors ... It is for the national 
court to make the necessary assessments of 
the facts of the main proceedings in the light 
of the abovementioned criteria'. 101 It seems 
therefore that the abovementioned criteria 
apply generally. In spite of the wording of the 
judgment, there appears to be no reason why 
they should apply only to piece workers. 
70. In the present case the groups to be com­
pared must therefore be formed on the basis 
of the abovementioned criteria in the context 
of general collective agreements, as I indi­
cated in my reply to the third question. 
Applying the criterion of difference in pay 
rates which is introduced by the collective 
agreements, that is to say, by reference to the 
criterion of qualifications, it seems that the 
two groups in question are, firstly, psycholo­
gists qualified to practise as such on a self-
employed basis and who work in all Austrian 
social insurance organisations and, secondly, 
doctors qualified to practise as such on a self-
employed basis and who work as medical 
specialists in all Austrian social insurance 
organisations. Therefore in the context of 
those two groups, for which the difference in 
pay is the result of collective agreements, it is 
necessary to analyse the percentages of men 
99 — Cited in footnote 21. 
100 — However, the question of specifying a minimum number 
did not arise. See the Opinion of Advocate General Léger 
in that case (paragraph 30). 
101 — Paragraphs 32 to 35. See also Enderby (cited in footnote 16, 
paragraph 17). 
I - 2901 
OPINION OF MR COSMAS — CASE C-309/97 
and women to ascertain whether there is dis­
crimination in relation to pay. 102 
71. However, the problem raised by the fifth 
question is not so simple as it appears at first 
sight because it must not be forgotten that, 
for the fifth question to arise, the reply to the 
first must be in the affirmative. 
Normally, the work of the groups to be com­
pared must be the same or work of equal 
value. 103 Consequently, in order for the 
national court to determine in more detail the 
groups to be compared, in principle it must 
be shown that they perform the same work 
or work of equal value. However, as I said 
with regard to the first question, because the 
qualifications involved in the present case are 
different, it cannot be said that the work is 
the same or of equal value unless the practice 
of psychotherapy is regarded as the same task. 
Therefore, even if it is not mentioned in the 
collective agreements, the criterion of per­
forming the same task must be combined with 
that of holding a given qualification, so that 
the groups concerned are in similar situations. 
It follows that the two groups to be com­
pared must, first, be psychologists qualified 
to practise as such on a self-employed basis 
and who work as psychotherapists in all Aus­
trian social insurance organisations and, sec­
ondly, doctors qualified to practise as such on 
a self-employed basis as specialists and who 
work as psychotherapists in all Austrian social 
insurance organisations. 
102 — It should be observed that, with regard to the context of 
the groups in question, the necessary statistics are not given 
clearly in the documents in the file. It gives no exact figures 
concerning the percentages of men and women among all 
qualified psychologists or among all doctors working in all 
Austrian social insurance organisations. Some figures were 
given by the Insurance Fund in its written observations and 
uring the oral procedure (see footnote 11 of this Opin­
ion). However, in all cases it is for the national court to 
decide whether the statistics provided by the parties are 
sufficient to establish the existence of indirect discrimina­
tion (see Enderby, cited in footnote 16, paragraph 17). 
Regarding the confusion concerning the choice of suitable 
statistics, however, although the Commission states that 
groups of workers must be compared in the context of col­
ective agreements, during the oral procedure the Commis­
sion compared psychologists practising psychotherapy with 
doctors in general and, in addition, in its written observa­
tions it compared the figures which, so far as doctors are 
concerned, relate to all employees of the Insurance Fund 
and, for qualified psychologists, relate to all employees 
practising psychotherapy in the sector of social insurance 
organisations (see the Commission's written observations, 
paragraph 48). Consequently the conclusion to which the 
Commission is led, that women form the majority among 
both doctors and psychologists, is not persuasive because 
it is not founded on suitable statistical data. 
At the same time, the way in which one must determine 
the context in which the comparison of groups of workers 
must be made, the question I have just dealt with, invali­
dates the Health Fund's remark that the fact that the main 
proceedings concern only one out-patients' clinic belonging 
to only one social insurance organisation and, within that 
clinic, only six doctors and six psychologists, whereas the 
rules on the status of employees of social insurance organi­
sations apply to a total of 1 932 doctors, 50 psychologists 
and 27 651 other workers, is significant in the light of the 
Court's case law to the effect that, for determining whether 
there is a breach of the principle of equal pay for men and 
women, the comparison must cover a relatively significant 
number of individuals so as to exclude purely fortuitous 
phenomena. 
103 — See the Opinion of Advocate General Lenz in the Danfoss 
case (cited in footnote 22, paragraph 40). See also the Royal 
Copenhagen judgment (cited in footnote 21, paragraphs 32 
and 33). 
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ANGESTELLTENBETRIEBSRAT DER WIENER GEBIETSKRANKENKASSE 
However, a comparison in the context of the 
abovementioned groups in order to ascertain 
whether there is a problem of discrimination 
in relation to pay would not be adequate. 
With regard to the rates of pay of the two 
groups of workers, doctor-psychotherapists 
and psychologist-psychotherapists, the groups 
which are compared in terms of numbers are, 
as I mentioned previously, determined in the 
context of collective agreements, which lay 
down mandatory rates of pay. If, neverthe­
less, it is necessary to take into account the 
sub-groups of doctors and psychologists prac­
tising psychotherapy in all Austrian social 
insurance organisations, the purpose of this is 
only to ascertain whether their work is the 
same or of equal value. If, therefore, in that 
context there were statistics which might indi­
cate a problem of discrimination against 
women, but no similar statistics in the con­
text of collective agreements, 104 in practice 
that discrimination would not relate to pay 
but to other aspects of the work in question. 
In particular, there might be discrimination 
on grounds of sex with regard to the choice, 
among doctors and/or psychologists, of per­
sons to practise psychotherapy. 
However, on this point it must be stressed 
that it is precisely this aspect of the main pro­
ceedings, that is to say, the fact that whether 
the work is the same or of equal value can be 
assessed only in a context other than that in 
which the groups of employees are compared 
in order to ascertain whether there is a problem 
of discrimination in pay, which proves two 
things. In the first place, it shows how dif­
ficult it is to find without hesitation that two 
groups of employees do the same work or 
work of equal value — or do the same job — 
where the two groups happen by chance to 
perform the same tasks, without disregarding 
any aspect of their different professional status. 
Secondly, it shows in this particular case the 
complex conclusions to which we are bound 
to be led if we accept that idea. 
72. Subject to this last observation, I propose 
that the Court, if it deems it appropriate to 
do so, reply to the fifth question as follows: 
where the duties in question performed by 
the two professional groups are comprised in 
the duties covered by professional qualifica­
tions, it is necessary to take account of all the 
employees possessing a qualification of that 
type who are within the scope of the collec­
tive employment agreement. 
F — The seventh question 
73. The seventh question seeks in essence a 
ruling on whether, where a given collective 
104 — In the present case, as I have said, whereas the file gives no 
statistics in the context of collective agreements, the order 
for reference states that, of a total of 34 persons working 
as psychotherapists in the sector of social insurance orga­
nizations, 24 are graduate psychologists, 18 of whom are 
women and 6 men, and 10 are doctors, 2 of whom are 
women and 8 men. Therefore women represent a much 
higher proportion only in the group of graduate 
p sychologist-psychotherapists, their proportion being much 
ower in the group of doctors who work as psychothera­
pists. 
I - 2903 
O P I N I O N O F MR COSMAS — CASE C-309/97 
agreement or staff regulations entails discrimi­
nation on grounds of sex, contrary to Com­
munity law, that discrimination will be ter­
minated only on the date of a finding to that 
effect by the Court of Justice or whether it 
will be terminated with retrospective effect. 
74. The Court has consistently held that the 
interpretation which, in the exercise of the 
jurisdiction conferred on it by Article 177 of 
the Treaty, the Court gives to a rule of Com­
munity law clarifies and defines where neces­
sary the meaning and scope of that rule as it 
must be or ought to have been understood 
and applied from the time of its coming into 
force. It follows that the rule as thus inter­
preted may, and must, be applied even to legal 
relationships arising and established before 
the judgment ruling on the request for inter­
pretation, provided, of course, that in other 
respects the conditions enabling an action 
relating to the application of that rule to be 
brought before the courts having jurisdiction 
are satisfied. 105 
75. Exceptions to the abovementioned rule 
arise only in very exceptional cases where the 
Court finds that observance of the rule would 
run counter to the principle of legal certainty 
which is inherent in the Community legal 
order. When considering whether that prin­
ciple imposes a limitation on the effect ratione 
temporis of a judgment given on a reference 
for interpretation, the Court determines 
whether (a) there is a risk of serious eco­
nomic repercussions owing in particular to 
the large number of legal relationships entered 
into in good faith on the basis of rules con­
sidered to be validly in force, and (b) indi­
viduals and national authorities have been 
prompted to adopt practices which did not 
comply with Community law by reason of 
objective, significant uncertainty regarding the 
implications of the Community provisions 
interpreted by the Court; if it is found that 
the conduct of other Member States or the 
Commission gave rise to or reinforced that 
uncertainty, that will be particularly rele­
vant. 106 
The Court has consistently held that such a 
restriction may be allowed only in the actual 
judgment ruling upon the interpretation 
sought. 107 However, that restriction does not 
apply to persons who brought legal proceed­
ings or submitted an equivalent claim before 
that date. 108 
105 — See Joined Caies C-197/94 and C-252/94 Bautiaa and 
Société Française Maritime [1996] ECR I-505, paragraph 
47. See also Case 61/79 Denkavit Italiana [1980] ECR 
1205, paragraph 16; Joined Cases 66/79, 127/79 and 128/79 
Salumi and Others [1980] ECR 1237, paragraph 9; Case 
811/79 Ariete [1980] ECR 2545, paragraph 6; Case 826/79 
Mireco [1980] ECR 2559, paragraph 7; Case 222/82 Lewis 
and Others [1983] ECR 4083, paragraph 38; Case 309/85 
Barra [1988] ECR 355, paragraph 11; Case 210/87 Pado­
vani and Others [1988] ECR 6177, paragraph 12; Case 
269/87 Ventura [1988] ECR 6411, paragraph 15; and Case 
C-62/93 BP Supergas [1995] ECR I-1883, paragraph 39. 
106 — See Bautiaa and Société Française Maritime (cited in foot­
note 105, paragraph 48). See also Defrenne (cited in foot­
note 17, paragraph 69 et seq.), Worringham and Hum­
phreys (cited in footnote 40, paragraph 29 et seq.), and 
Joined Cases 142/80 and 143/80 Essevt and Salengo [1981] 
ECR 1413, paragraph 30 et seq.; Case 24/86 Blaizot [1988] 
ECR 379, paragraph 28 et seq.; Barber (cited in footnote 
76, paragraph 40 et seq.); Case C-200/90 Dansk Denkavit 
and Poulsen Trading [1992] ECR I-2217, paragraph 20 et 
seq.; Case C-163/90 Ugros and Others [1992] ECR I-4625, 
paragraph 28 et seq.; Joined Cases C-367/93 to C-377/93 
Roders and Others [1995] ECR I-2229, paragraph 41 et 
seq.; Joined Cases C-485/93 and C-486/93 Simitzi [1995] 
ECR I-2655, paragraph 29 et seq.; and Case C-137/94 
Richardson [1995] ECR I-3407, paragraph 32 et seq. 
107 — See Blaizot (cited in footnote 106, paragraph 28). 
108 — See Blaizot (cited in footnote 106, paragraph 35). 
I - 2904 
ANGESTELLTENBETRIEBSRAT DER WIENER GEBIETSKRANKENKASSE 
As the Court has held, in determining whether 
or not to limit the temporal effect of a judg­
ment it is necessary to bear in mind that 
although the practical consequences of any 
judicial decision must be weighed carefully, 
the Court cannot go so far as to diminish the 
objectivity of the law and compromise its 
future application on the ground of the pos­
sible repercussions which might result, as 
regards the past, from a judicial decision.109 
76. On the basis of the observations in the 
order for reference, the seventh question does 
not arise if, in reply to the first question, the 
Court finds that the work in question is 'the 
same work' or 'work of equal value'. The 
seventh question arises only if, in reply to the 
sixth question, the Court finds that, where 
the same tasks are performed, the different 
levels of training and the different qualifica­
tions do not in themselves constitute differ­
ences justifying discrimination within the 
meaning of Article 119 of the Treaty. Conse­
quently the conditions for applying the above-
mentioned case-law must be examined only 
in the latter case. 
77. The direct application of Article 119 has 
been a settled principle of Community law 
since the judgments in Defrenne 110 and Jen­
kins. 111 Since 1 July 1995, the date of the 
accession of the Austrian Republic to the 
European Union, employers and employees 
in Austria cannot have failed to be aware of 
the conditions laid down by Article 119 when 
negotiating collective agreements. In this con­
nection it must be stressed that, contrary to 
the statements of the national court in the 
order for reference and of the Health Fund in 
its observations, the fact that legal relation­
ships have been created in good faith on the 
basis of measures which were generally 
thought to comply with national law is irre­
levant. In order for the question of legitimate 
expectation with regard to the effect of a 
judgment ratione temporis to arise, the legal 
relationships must be created on the basis of 
measures which were generally thought to 
comply with Community law. 
On the basis of the case-law laid down in 
Danfoss,112 the Member States and employers 
and employees would be fully entitled to 
believe that different levels of training, and 
different qualifications which are attributable 
to different training, constitute, in the cir­
cumstances described by the said judgment, 
differences objectively justifying discrimina­
tion within the meaning of Article 119 of the 
Treaty. Therefore, should the judgment to be 
given by the Court differ significantly from 
the principles set out in Danfoss, that really 
would create a risk of serious economic reper­
cussions owing in particular to the large 
number of legal relationships entered into in 
good faith on the basis of rules considered to 
be validly in force under Community law, 
and to the fact that employers and employees 
have been prompted to adopt practices which 
do not comply with Community law by 
reason of objective, significant uncertainty 
regarding the implications of the Community 
109 — Sec Blaizot (cited in footnote 106, paragraph 30). 
110 — Sec the judgment cited in footnote 17. 
111 — Sec the judgment cited in footnote 26. 112 — See the judgment cited in footnote 22. 
I - 2905 
OPINION OF MR COSMAS — CASE C-309/97 
provisions interpreted by the Court. What 
would have led to, or increased, that uncer­
tainty is not the conduct of other Member 
States or of the Commission, but the case-law 
of the Court itself. 113 
78. Consequently I propose that the Court 
limit the future effect ratione temporis of its 
judgment for all those persons who have not 
hitherto brought legal proceedings or sub­
mitted equivalent claims only if it refuses to 
follow the Danfoss judgment and ultimately 
decides that, where the same tasks are per­
formed, the different levels of training and 
the different professional qualifications do 
not in themselves constitute differences justi­
fying discrimination within the meaning of 
Article 119 of the Treaty. 
VI — Conclusion 
79. I propose that the Court reply as follows to the questions referred to it by the 
Oberlandesgericht Wien: 
(1) Article 119 of the EC Treaty must be interpreted as meaning that 'equal work' 
or 'the same job' does not exist where employees have different professional 
qualifications because they have received fundamentally different training and 
perform the same duties over a considerable length of time (several salary peri­
ods), if those employees are recruited on the basis of those qualifications and if 
the qualifications relate to the duties which they perform. 
(2) If the foregoing reply is given to the first question, it is unnecessary to reply 
to the others. 
113 — For the protection of legitimate expectation created by the 
Court's case law, see Case C-308/93 Cabanis-Issarte [1996] 
ECR I-2097, paragraphs 47 and 48 and paragraph 2 of the 
operative part. 
I - 2906