Opinion of the Advocate General — ECLI:EU:C:1999:618
Date: 1999-12-16
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Sweden

Summary of the Judgment 
1. Social policy — Men and women — Equal pay — Inconvenient hours for midwives — 
Whether to take into account for the purposes of comparison with clinical technicians' 
pay — Exclusion — Burden of proof where there is apparent discrimination 
(EC Treaty Art. 119 (Arts 117 to 120 of the EC Treaty have been replaced by Arts 136 
EC to 143 EC); Council Directive 75/117) 
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SUMMARY — CASE C-236/98 
2. Social policy — Men and women — Equal pay — Reduction in working time accorded 
to midwives for work on a roster sytem and value of that reduction — Whether to take 
into account for the purposes of comparison with clinical technicians' pay — 
Exclusion — Reduction capable of being a factor justifying possible difference in 
pay — Burden of proof 
(EC Treaty Art. 119 (Arts 117 to 120 of the EC Treaty have been replaced by Arts 136 
EC to 143 EC); Council Directive 75/117) 
1. The inconvenient-hours supplement 
paid to midwives that varies from 
month to month according to the part 
of the day during which the hours in 
question were worked and thus makes 
it difficult to make a meaningful com­
parison between, on the one hand, a 
midwife's salary and supplementary 
allowance, taken together, and, on the 
other hand, the basic salary of clinical 
technicians, is not to be taken into 
account in calculating the salary paid 
to the two groups which serves as the 
basis for a pay comparison for the 
purposes of Article 119 of the EC 
Treaty (Articles 117 to 120 of the EC 
Treaty were replaced by Articles 136 
EC to 143 EC) and Directive 75/117. 
If a difference in pay between the two 
groups compared is found to exist, and 
if the available statistical data indicate 
that there is a substantially higher 
proportion of women than men in the 
disadvantaged group, Article 119 of 
the Treaty requires the employer to 
justify the difference by objective fac­
tors unrelated to any discrimination on 
grounds of sex. 
(see paras 45, 54, operative part 1) 
2. Neither the reduction in working time, 
by reference to the standard working 
time for day-work performed by clin­
ical technicians, awarded in respect of 
work performed by midwives accord­
ing to a three-shift roster, nor the value 
of such a reduction, are to be taken 
into consideration for the purpose of 
calculating the salary used as the basis 
for a pay comparison for the purposes 
of Article 119 of the Treaty (Arti­
cles 117 to 120 of the Treaty have 
been replaced by Articles 136 EC to 
143 EC) and Directive 75/117. 
However, such a reduction may con­
stitute an objective reason unrelated to 
any discrimination on grounds of sex 
such as to justify a difference in pay. It 
is for the employer to show that such is 
in fact the case. 
(see para. 63, operative part 2) 
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