Opinion of the Advocate General — ECLI:EU:C:2003:201
Date: 2003-04-03
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 
Social policy — Men and women — Access to employment and working conditions in 
the exercise of activities in a self-employed capacity — Equal treatment — Opportunity 
for public-sector employees who have reached a certain age to work part time — 
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SUMMARY — CASE C-77/02 
Exclusion from part-time work of employees who have not worked full time for at least 
three of the preceding five years — Exclusion almost exclusively affecting women — 
Indirect discrimination — Not permitted in the absence of objective justification 
(Council Directive 76/207, Arts 2(1) and 5(1)) 
Articles 2(1) and 5(1) of Directive 76/207 
on the implementation of the principle of 
equal treatment for men and women as 
regards access to employment, vocational 
training and promotion, and working con­
ditions must be interpreted as precluding a 
provision of national law by virtue of 
which part-time work for older employees 
may be authorised for public servants only 
if they have worked full-time for a total of 
at least three of the five years preceding 
such part-time work, when significantly 
more women than men work part-time and 
are consequently excluded by that provi­
sion from the scheme of part-time work for 
older employees, unless such provision is 
justified by objective factors unrelated to 
any discrimination on grounds of sex. 
In this regard, it is for the national court to 
determine whether that is so, ascertaining 
in light of all the relevant factors and taking 
into account the possibility of achieving by 
other means the aims pursued by the 
provisions in question, whether such aims 
appear to be unrelated to any discrimi­
nation based on sex and whether that 
provision, as a means to the achievement of 
certain aims, is capable of advancing those 
aims. Mere generalisations concerning the 
capacity of a specific measure to encourage 
recruitment are not enough to show that 
the aim of the disputed provisions is 
unrelated to any discrimination on grounds 
of sex or to provide evidence on the basis of 
which it could reasonably be considered 
that the means chosen are or could be 
suitable for achieving that aim. 
Moreover, a provision of national law 
which poses the risk that workers may be 
discouraged from accepting part-time work 
for the reason that they will subsequently 
be unable to join the scheme of part-time 
work for older employees cannot a priori 
be considered to be an apt or suitable 
means of attaining the objective of 
unblocking the employment market. 
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STKINICKE 
Lastly, although budgetary considerations 
may underlie a Member State's choice of 
social policy and influence the nature or 
scope of the social protection measures 
which it wishes to adopt, they do not in 
themselves constitute an aim pursued by 
that policy and cannot therefore justify 
discrimination against one of the sexes. 
(see paras 58, 64-66, 74, operative part ) 
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