Opinion of Mr Advocate General Léger delivered on 23 February 1999. - Gabriele Gruber v Silhouette International Schmied GmbH & Co. KG. - Reference for a preliminary ruling: Landesgericht Linz - Austria. - Equal pay for men and women - Payments on termination of employment - Indirect discrimination. - Case C-249/97.



European Court reports 1999 Page I-05295



Opinion of the Advocate-General

1 By the questions referred to the Court for preliminary ruling, the Landesgericht (Regional Court) Linz, Austria, essentially seeks to ascertain whether the principle that men and women should receive equal pay, which is laid down in Article 119 of the EC Treaty, must be interpreted as precluding the application of a national rule pursuant to which workers who terminate their employment relationship in order to look after their children owing to a lack of child-care facilities for children under the age of three may receive no more than half of the compensation payable on termination of employment for the actual length of their service, while workers of the opposite sex who terminate their employment relationship for some other reason are entitled to full compensation calculated on the basis of the entire period of their employment.

The relevant Community and national provisions

Article 119 of the Treaty

2 Pursuant to the first paragraph of Article 119 of the Treaty, Member States are required to ensure and maintain `the application of the principle that men and women should receive equal pay for equal work'.

3 The second paragraph of that article explains that `pay' means `the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives, directly or indirectly, in respect of his employment from his employer'.

4 Article 119 of the Treaty, inasmuch as it states a principle which `... forms part of the foundations of the Community', `... is directly applicable and may thus give rise to individual rights which the courts must protect'. (1)

The relevant national provisions

5 Paragraph 23(1) of the Angestelltengesetz (Law on Employees, hereinafter `the AngG') provides that employees are entitled to compensation on termination of an unbroken period of three years' service.

6 However, under Paragraph 23(7) AngG, employees are not entitled to compensation if they give notice themselves, if they resign prematurely for no important reason or if they are dismissed prematurely through their own fault.

7 The important reasons for which employees may terminate their employment and receive the whole of the compensation referred to in Paragraph 23(1) AngG are set out in the law and relate principally, though not exclusively, to situations where the employer's attitude towards the employee or the employee's family makes it impossible for the employee to remain in his employment. The reasons are listed in Paragraph 26 AngG and Paragraph 82a of the Gewerbeordnung (Industrial Code, hereinafter `the GewO') which applies to workers.

8 Thus, Paragraph 26 AngG provides that:

`The following, in particular, shall be regarded as important reasons which justify the employee leaving prematurely:

1. the employee is unfit for work or cannot to work without damage to his health or moral welfare;

2. the employer wrongfully reduces or withholds pay to which the employee is entitled, discriminates against him by providing unhealthy or insufficient food or insanitary living accommodation where payment is made in kind, or fails to abide by other important terms of the contract;

3. the employer fails to fulfil his statutory obligation to protect the life, health and moral welfare of his employee;

4. the employer inflicts physical or moral injury on the employee or members of his family or seriously damages their reputations, or refuses to protect the employee against such conduct on the part of one of the employer's colleagues or a member of his family.'

9 Paragraph 82a GewO provides that:

`A worker may leave his work if:

(a) he cannot continue his work without demonstrable damage to his health;

(b) the employer inflicts physical injury on the worker or members of his family or seriously damages their reputations;

(c) the employer or members of his family seek to lead the worker or members of his family into immoral or unlawful conduct;

(d) the employer wrongfully withholds pay due to the worker or fails to abide by other important terms of the contract;

(e) the employer is unable or unwilling to pay the worker's wages.'

10 The Austrian courts do not recognise family obligations as an important reason within the meaning of Paragraph 26 AngG that would constitute legitimate grounds for a male or female employee to resign. (2)

11 On the other hand, some Austrian statutory provisions do admit family circumstances as grounds for a claim to full compensation. Thus, the plaintiff has referred in particular to Paragraph 33(4) of the Landarbeitsgesetz (Law on Agricultural Work), under which workers who resign because of unforeseen changes in their family circumstances which make it impossible for them to continue the employment relationship without serious damage are entitled to full compensation.

12 Also, a female worker who terminates her employment relationship to look after her child may, on certain conditions, claim compensation. Thus, under Paragraph 23a(3) AngG, female employees who have been employed for an unbroken period of five years are entitled to half the compensation payable under Paragraph 23(1) - albeit only up to a certain ceiling - if they give notice, after a live birth, within the period specified in Paragraph 5(1) of the Mutterschutzgesetz (Law on Maternity Benefits, hereinafter `MSchG'). If the employee takes parental leave under the MSchG, notice must be given no later than three months before the end of the period of that leave.

13 Under Paragraph 23a(4) AngG, Paragraph 23a(3) also applies to male employees who take leave under the Eltern-Karenzurlaubgesetz (Law on Parental Leave, hereinafter `the EKUG') and who give notice no later than three months before the end of the period of unpaid leave.

14 Under the MSchG, female workers in particular are entitled to two years' unpaid leave and that right is extended to male employees under the EKUG.

15 Under Paragraph 2 of the Arbeiterabfertigungsgesetz (Law on Compensation payable to Workers on Termination of their Employment), Paragraphs 23 and 23a AngG are applicable to workers.

Facts and procedure

16 Mrs Gruber was employed as a worker by Silhouette International Schmied GmbH & Co. KG (hereinafter `Silhouette') from 23 June 1986 to 13 December 1995.

17 She has two children, born on 1 October 1993 and 19 May 1995. She took two years' leave for the first, as well as for the second, child, so that she was absent from the autumn of 1993, first on maternity leave (before and after her confinement) and then on parental leave. When the period of parental leave came to an end, she had difficulty in arranging for her children to be looked after, owing to a lack of child-care facilities, and she was obliged to resign to look after them even though she had expressed a genuine desire to continue in her employment.

18 Pursuant to Paragraph 23a(3) AngG, Silhouette paid Mrs Gruber half the statutory compensation, which came to 34 243 Austrian shillings.

19 Mrs Gruber brought an action against that decision before the Landesgericht Linz, arguing that there was an important reason for her resignation, namely the lack of child-care facilities for children under the age of three in Upper Austria where she lives, and seeking double the amount of compensation she had received. She claims that the national provisions restricting her rights constitute indirect discrimination against female workers, which is prohibited under Article 119 of the Treaty.

20 Considering that the determination of the case before it depends on the interpretation of that provision of Community law, the Landesgericht Linz referred the following questions to the Court for a preliminary ruling:

`1. Is it compatible with Article 119 of the EC Treaty that, owing to lack of child-care facilities, predominantly women have to terminate their employment in order to look after their children and these women, despite fulfilment of additional conditions (longer service), receive no more than half of the compensation payable upon termination of employment for the actual length of their service (Paragraph 23a(3) of the Angestelltengesetz) whilst men keep the full compensation period?

2. Is it relevant that in Austria most nurseries are State-run or State-aided?'

Discussion

Admissibility of the questions

21 Silhouette contends that the questions should be declared inadmissible. It argues that they are hypothetical in that, contrary to the statements of the national court and Mrs Gruber, the plaintiff in the main proceedings was not obliged to resign, since she could have taken a further year's parental leave. She could not therefore rely on the provisions of Paragraph 23(1) AngG.

22 Mrs Gruber has admitted to the Court that she could indeed have taken a further year's leave, but she claims that the problem raised by the national court would in any case have arisen when that leave came to an end.

23 Silhouette's objections amount to a criticism of the assessment of the facts and the application of national law by the national court. However, it should be noted that the Court has consistently held (3) that the national courts and the Court of Justice constitute two separate and distinct legal orders and that it is for the national courts to furnish the Court with `the factual and legal material necessary to give a useful answer to the questions submitted to it'. (4) The Court may refuse to rule on a question submitted to it only `where it is quite obvious that the interpretation of Community law sought by a national court bears no relation to the actual facts of the main action or to its purpose or where the problem is hypothetical'. (5)

24 Also, it is for the national court to interpret the national provision at issue, under which notice must be given no later than three months before the end of the period of leave to give rise to a valid claim to payment of the compensation provided for in Paragraph 23a(3) AngG. The Court cannot therefore substitute its judgment for the judgment of the national court in assessing Mrs Gruber's situation.

25 I therefore take the view that the question is not hypothetical, assuming the national court's account of the facts and the national law to be correct.

The first question

26 By its first question, the national court asks the Court to determine whether Article 119 of the EC Treaty must be interpreted as precluding a national law which has the effect of limiting the amount of the compensation on termination of employment payable to women who are obliged to resign in order to look after their children under the age of three owing to a lack of child-care facilities for children of that age, even if those women fulfil additional conditions (longer service), while other reasons such as health, a fault on the part of the employer, even family circumstances in some cases, (6) are recognized as conferring entitlement to compensation calculated on the basis of the entire period of employment.

27 Mrs Gruber claims that she has suffered indirect discrimination in respect of pay, compared with her male colleagues. Although obliged to resign for family reasons (in order to look after their children, a task carried out predominantly by women) female employees are awarded under Paragraph 23a(3) AngG only half of the compensation payable for the relevant periods or less (no more than three months' wages) and the employment relationship must have lasted at least five years. On the other hand, male employees who are obliged to resign for some other reason are entitled to compensation calculated on the basis of the entire period of employment, in the case of an unbroken period of three years' service, and the compensation is payable on the occurrence of any of the events conferring entitlement within the meaning of Paragraphs 23(7) and 26 AngG.

28 Silhouette and the intervening governments contend that Article 119 of the Treaty does not require Member States to pay compensation to female workers who terminate their employment to look after their children. However, they consider that Article 119 does not preclude national provisions such as Paragraph 23a(3) AngG and that that provision does not discriminate against female employees. On the contrary, were it not for that provision they would not be entitled to any compensation at all on terminating their employment for family reasons, since looking after a child cannot be regarded as an important reason conferring entitlement to the compensation provided for under Paragraph 23(1) AngG. They therefore contend that the provision is a special measure for the benefit of workers who want to look after their children.

29 In the light of the information supplied to the Court, there is little doubt that the situation in which Mrs Gruber finds herself does indeed fall within the material and personal scope of Article 119 of the Treaty.

30 The main proceedings are about the calculation of the amount of the compensation on termination of employment that is payable to the person concerned. However, the Court has consistently held that `compensation on termination of employment' which is `the compensation granted to a worker in connection with his redundancy ... constitutes a form of pay to which the worker is entitled in respect of his employment, which is paid to him upon termination of the employment relationship, which makes it possible to facilitate his adjustment to the new circumstances resulting from the loss of his employment and which provides him with a source of income during the period in which he is seeking new employment'. (7)

31 Mrs Gruber, who was on maternity leave followed by parental leave at the time of the event that caused her to bring an action before the court, must also be deemed to be a worker within the meaning of Article 119 of the Treaty since her contract of employment with her employer was still in force despite the breaks in employment occasioned by her maternity leave or parental leave.

32 There is also little doubt - and it is common ground between the parties - that the national legislation at issue cannot be regarded as a measure that discriminates directly against female employees. Indeed, as we have seen, (8) it is intended to apply without distinction to female and male employees in the same circumstances. Sex is consequently not the ostensible reason for the differences in the amount of compensation granted.

33 It must therefore be determined whether, as Mrs Gruber maintains, a provision such as Paragraph 23a(3) AngG constitutes a measure that discriminates indirectly against female employees.

34 The Court has consistently held that there is indirect discrimination where `the application of a national measure ... although formulated in neutral terms, works to the disadvantage of far more women than men, unless that measure is based on objective factors unrelated to any discrimination on grounds of sex'. (9) I shall now turn my attention to these three aspects.

35 In the first place, therefore, a national provision such as Paragraph 23a(3) AngG can be discriminatory only if gives rise to a disadvantage.

36 I shall consider first whether the situation experienced by Mrs Gruber is to be regarded as a discriminatory situation which, as we know, involves the application of different rules to comparable situations or the application of the same rule to different situations. (10) In principle, it is for the national court to satisfy itself that the situations of the groups to be compared are in fact identical, before considering whether or not there is discrimination.

37 The national court, Mrs Gruber and the Commission consider that the legal system governing the rights of a first group consisting of female workers who are obliged to resign because there is no other arrangement available for looking after their children should be compared with the system governing the rights of a second group consisting of workers who are obliged to resign for other important reasons.

38 They also consider that the first group is placed at a disadvantage compared with the second, inasmuch as the first receives only half the compensation paid to the second on termination of employment and is subject in addition to stricter conditions, including the completion of an unbroken period of five years' service as against only three years for the second group.

39 Silhouette and the Austrian Government consider that the comparison should be with the group consisting of workers who resign without any important reason or workers who terminate the employment relationship of their own free will for personal reasons. These groups receive no compensation and it is consequently clear that, contrary to Mrs Gruber's assertions, female employees who receive half the compensation on termination of employment are being given preferential treatment.

40 The Court has never defined the criteria on which groups are to be selected for purposes of comparison. In principle, the national courts have absolute discretion to assess the facts, identify similar situations and accordingly determine the appropriate parameter for purposes of comparison. It should however be noted that, to perform this task, the Court suggests that the national courts should compare the allegedly discriminatory situation or measure with another situation or measure having a similar purpose and arising from a similar cause. (11)

41 In the light of the facts supplied by the national court, it is apparent that Mrs Gruber's complaint is that she has not received compensation on termination of employment calculated on the basis of the entire period of her employment. Thus, the purpose of the action is the payment of compensation following resignation. The relevant group of workers is therefore workers who resign. This first aspect of the appropriate parameter for purposes of comparison is accepted by all of the parties in the case.

42 They are not, however, in agreement on the second aspect, namely the cause of the situation. In this case, the national court has to assess whether the female employee's resignation was the result of a deliberate decision, which she took of her own free will without being in any degree forced to do so, or whether it was due solely to the pressure of overriding reasons beyond the control of the employee, who had difficulty in arranging for her children to be looked after owing to a lack of child-care facilities. In the first case, the decision to resign would be, as Silhouette and the Austrian Government maintain, taken of her own free will for her personal convenience. In the second case, it would be forced upon her.

43 It is in any event for the national court to rule on the matters of fact submitted to it for assessment. Thus, according to that court, Mrs Gruber did not choose to resign of her own free will for personal reasons, she was obliged to do so for an overriding reason (to ensure the health and safety of children under the age of three), which was beyond her control (no other arrangement was available for looking after her children). Her situation must therefore be compared with that of workers forced to resign for similar reasons. It is clear from the account of the national legislation given by the national court that family circumstances or health constitute reasons for resigning, irrespective of the wishes of employees or beyond their control, and that they cannot in those circumstances be held to have resigned of their own free will and consequently not to be entitled to receive compensation on termination of employment calculated on the basis of the entire period of their employment. (12)

44 The outcome of all the discussions is, in my view, that the parameter to be adopted for purposes of comparison in the present case is that of workers placed in circumstances such that it is not reasonable to require them to continue their employment relationship. This criterion gained the support of all parties when it was proposed at the hearing.

45 I would have taken an entirely different view had it not been for the particular circumstances described in the order for reference, in other words if the employee had terminated her employment relationship of her own free will and if she had been able to arrange for her children to be looked after. Article 119 of the Treaty does not require Member States to provide for workers to be paid if they take leave to look after their children, nor does it preclude such provision. In the present case, however, the issue is whether it is compatible with Article 119 of the Treaty to pay two groups of workers differently when both are placed in circumstances such that it is not reasonable to require them to continue their employment relationship.

46 It is therefore necessary to compare the amount of the compensation on termination of employment paid to these different groups of workers. It is for the national court to determine whether Mrs Gruber has been placed at a disadvantage compared with workers in similar circumstances.

47 A worker such as Mrs Gruber is clearly placed at a disadvantage by the fact that she receives only half the compensation on termination of employment to which other employees are entitled when they resign on the ground that there would be a risk to the physical health or moral welfare of themselves or their families if they were to continue the employment relationship, as provided for in Paragraph 26 AngG or Paragraph 33(4) of the Landarbeitsgesetz.

48 Moreover, it is apparent that the compensation on termination of employment granted to employees who are obliged to resign to look after their children owing to a lack of child-care facilities is subject to the fulfilment of additional conditions over and above those governing the payment of compensation on termination of employment to employees who are obliged to resign for other overriding reasons. Thus, the employment relationship must have lasted more than five years. The disadvantage identified in this case is twofold.

49 At this point in my reasoning, I am obliged to conclude that on the face of it workers who show that they have been forced to resign because no other arrangement is available for looking after children under the age of three are clearly placed at a disadvantage by a national measure which grants them less compensation on termination of employment - despite the fact that they fulfil additional conditions - than it grants to workers who show that they have been obliged to resign for similar reasons.

50 In the second place, as we have seen, not to pay workers the same when they are similarly placed in circumstances such that it is not reasonable to require them to continue their employment relationship would constitute discriminatory treatment prohibited under Article 119 of the Treaty only if the group of workers placed at a disadvantage consisted mainly of women. It must therefore be determined whether that was the case.

51 The Court has consistently held (13) that in principle it is for the national court to examine the statistics in this connection.

52 The Court has, however, suggested that certain conditions should be fulfilled. Thus it has regularly pointed out that the comparison must be drawn with a representative group of workers (14) and `in relation to a relatively large number of employees' (15) and lastly that `it is for the national court to assess whether it may take into account those statistics, that is to say, whether they cover enough individuals, whether they illustrate purely fortuitous or short-term phenomena, and whether, in general, they appear to be significant'. (16)

53 Thus, disputed measures are presumed to be discriminatory only if they affect a group of workers of a specific sex. That may be ascertained by means of `significant' statistics, (17) that is to say the group that is subject to discrimination must consist of `far more women than men' (18) or the measure must affect `a far greater number of women than men'. (19)

54 According to the statistics supplied by the national court, (20) the situation mainly affects female workers. In any event, that court has sole jurisdiction to assess whether those figures are significant.

55 In the third place, to confirm the presumption that a disadvantage in respect of pay mainly affects female workers, the national court must satisfy itself that the difference in treatment is not explained by `objective factors unrelated to any discrimination on grounds of sex'. (21)

56 The Court has shifted the burden of proof in this area. It is incumbent on the framers of the allegedly discriminatory measure to provide evidence to prove that it is based on objectively justified factors unrelated to any idea of discrimination. In the present case, the measure at issue is a legislative provision and the burden of proof therefore lies with the Austrian Government.

57 The Court has consistently held (22) that it is for the national court, `which has sole jurisdiction to assess the facts and interpret the national legislation', (23) to determine whether the reasons advanced for the provision at issue clear it of any suspicion of discrimination. However, the Court has given the national courts some guidance by stating that the means chosen must correspond to a real need, must be appropriate with a view to achieving the objective in question and must be necessary to that end. (24) Occasionally, the Court has even taken a more active part. Thus it is settled law that `although in preliminary-ruling proceedings it is for the national court to establish whether such objective factors [unrelated to any discrimination on grounds of sex] exist in the particular case before it, the Court of Justice, which has to provide answers of use to the national court, may provide guidance based on the documents before the national court and on the written and oral observations which have been submitted to it, in order to enable the national court to give judgment'. (25)

58 On the basis of that case-law, the Court has thus allowed that reasons of employment policy and reasons of social policy may both constitute objectively justified factors clearing disputed national measures of any suspicion of discrimination.

Thus, in its judgment in Bilka, cited above, the Court held that the exclusion of part-time workers from an occupational pension scheme corresponded to a real need of employment policy that was not prohibited under Article 119 of the Treaty. The measure was designed to encourage employees to work full-time and particularly on Sundays. In that particular case, it had been found that part-time workers refused to work on Sundays. The measure had therefore been introduced to make full-time work more attractive. In its judgment in Megner and Scheffel, cited above, the Court held that the arguments advanced by the Federal Republic of Germany for excluding persons in minor employment from the statutory social security schemes corresponded to a structural principle of the German social security scheme that was `objectively unrelated to any discrimination on grounds of sex and that, in exercising its competence, the national legislature was reasonably entitled to consider that the legislation in question was necessary to achieve that aim'. (26)

59 Conversely, the Court has occasionally held that the reasons advanced by the framers of discriminatory measures were not justified by objective factors unrelated to any idea of discrimination.

Thus, in its judgment in Lewark, (27) the Court held that the fact that full-time workers were not paid in the same way as part-time workers because only full-time workers were paid for the time spent on training courses for members of the staff council was not justified by objective factors unrelated to any discrimination on grounds of sex. Similarly, in its judgment in Rinner-Kühn, cited above, it held that the provision, under which workers whose period of work amounted to less than 10 hours a week were excluded from the continued payment of wages in the event of illness because they were not as integrated in, or as dependent on, the undertaking employing them as other workers, did not enable criteria which are both objective and unrelated to any discrimination on grounds of sex to be identified.

60 The Austrian Government asserts that the purpose of the provision at issue is to enable workers who wish to terminate their employment contract in order to look after their children to receive some compensation. The measure is thus based on reasons of social policy. It is true, as we have seen, that workers resigning for purely personal reasons such as a wish to look after their children are not afforded any special protection under Community law. However, as the national court has explained at length, the facts in the present case are quite different. But the Austrian Government offers no reason why the argument that the female worker is forced to resign because there is absolutely no other arrangement available for looking after her children cannot be considered by the national court as an important reason conferring entitlement to the full compensation on termination of employment paid to male workers who are not forced to resign for that reason, when other family circumstances are regarded as a reason conferring entitlement to compensation calculated on the basis of the entire period of their employment. Nor does it explain why the compensation on termination of employment payable to workers who are forced to resign to look after their children owing to a lack of child-care facilities is subject to additional conditions, notably longer service.

61 Silhouette adds that, since the compensation on termination of employment has to be paid by employers, the budgetary implications of a decision requiring them to pay full compensation to female workers in circumstances such as those described by the national court would place a financial burden on employers that they would find difficult to bear.

62 The Court has already formally refused to recognize that budgetary considerations may constitute an objective justification for discriminating between male and female workers in respect of pay. (28)

63 These factors in the case are not therefore such as to constitute objective justifications for the alleged discrimination.

64 It follows from the foregoing considerations that Article 119 of the Treaty must be interpreted as precluding the application of a rule of national law, which works to the disadvantage of far more workers of one sex than of the other and which cannot be justified by objective factors unrelated to any discrimination on grounds of sex. That is true, in the present case, of the rule which limits the amount of the compensation on termination of employment payable to workers who find themselves in circumstances such that it is not reasonable to require them to continue their employment relationship, while workers of the opposite sex in similar circumstances enjoy more favourable conditions, including payment of compensation on termination of employment calculated on the basis of the entire period of their employment.

The second question

65 The second question is a refinement on the first. The national court asks the Court whether the answer to the first question is affected by the nature of child-care arrangements in Austria. In other words, must the question whether the child-care facilities for young children are public or private be taken into account in determining whether or not a worker placed in a situation comparable to that of Mrs Gruber has suffered indirect discrimination in respect of pay?

66 This case could have prompted an investigation into the compatibility of measures adopted by national legislation such as those at issue in the present case with the measures for women laid down and authorised in Directive 76/207/EEC. (29) As you know, Article 1(1) of that Directive states that the purpose of the Directive is `to put into effect in the Member States the principle of equal treatment for men and women as regards access to employment, including promotion, and to vocational training and as regards working conditions ...'. Article 2(1) states that `... the principle of equal treatment shall mean that there shall be no discrimination whatsoever on grounds of sex either directly or indirectly by reference in particular to marital or family status'. Article 2(4) allows Member States to adopt or maintain in force `measures to promote equal opportunity for men and women ... in the areas referred to in Article 1(1)'.

67 However, it is clear from the documents in the case submitted to the Court for consideration that the national court, in the context of the main action before it, is not asking the Court to assess whether the measures adopted in Austria to promote equal opportunity for men and women comply with the letter and spirit of those provisions. (30)

68 The purpose of the main proceedings is purely and simply to establish whether or not there is a discriminatory situation prohibited under Article 119 of the Treaty in order to determine the amount of the compensation on termination of employment payable to Mrs Gruber. (31)

69 However, the Court has consistently held that Article 177 of the EC Treaty requires the national court and the Court of Justice to make direct and complementary contributions to the working out of a decision (32) and that the Court consequently answers only such questions as the national court deems to be necessary to enable it to determine the case before it. (33) I would draw your attention, in this connection, to the actual terms of the Court's judgment in Van Gend en Loos: (34)

`... in order to confer jurisdiction on the Court ... it is necessary only that the question raised should clearly be concerned with the interpretation of the Treaty. The considerations which may have led a national court or tribunal to its choice of questions as well as the relevance which it attributes to such questions in the context of a case before it are excluded from review by the Court of Justice'.

70 The second question raised by the national court therefore seeks essentially to ascertain whether establishing the existence of a discriminatory situation prohibited under Article 119 of the Treaty depends on the cause of that situation.

71 The Court has ruled that Article 119 of the Treaty states a principle which `forms part of the foundations of the Community' and `is directly applicable and may thus give rise to individual rights which the courts must protect'. (35) Individuals may consequently rely on that provision in proceedings against any employer or any private person or public body that infringes the principle it enshrines. That principle, which `forms part of the foundations of the Community', thus has absolute authority and the prohibition it embodies is not only binding on the public authorities but applies also to all collective agreements on paid employment and to agreements between individuals. (36)

72 It follows from that case-law that the absolute nature of the protection conferred by that provision on individuals who invoke it cannot be limited by considerations relating to the cause of the discriminatory situation. Consequently, all that is required to establish that there has been an infringement of Article 119 of the Treaty is to show that a male or female worker has been placed in a discriminatory situation in respect of pay. In other words, in identifying a discriminatory situation, it is irrelevant whether the cause of that situation is private or public.

73 Thus, in the context of the main proceedings, whether the cause of the lack of child-care facilities for children under the age of three is private or public is irrelevant for the purpose of determining whether Article 119 of the Treaty has been respected.

74 The answer to the second question must therefore be that the fact that in Austria child-care facilities for young children are generally State-run or State-aided does not affect the answer given above.

Conclusion

75. In the light of the foregoing observations, I propose that the Court give the following answers to the questions referred by the Landesgericht Linz:

(1) Article 119 of the EC Treaty must be interpreted as precluding the application of a rule of national law, which works to the disadvantage of far more workers of one sex than of the other and which cannot be justified by objective factors unrelated to any discrimination on grounds of sex. That is true, in the present case, of the rule which limits the amount of the compensation on termination of employment payable to workers who find themselves in circumstances such that it is not reasonable to require them to continue their employment relationship, while workers of the opposite sex in similar circumstances enjoy more favourable conditions, including payment of compensation on termination of employment calculated on the basis of the entire period of their employment.

(2) The fact that in Austria child-care facilities for young children are generally State-run or State-aided does not affect the answer given above.

(1) - Case 43/75 Defrenne [1976] ECR 455, paragraphs 12 and 24.

(2) - This was expressly stated in rulings handed down by the Landesgericht Klagenfurt, 13 May 1970, Arb.8784, and the Landesgericht für Zivilrechtssachen Wien, 25 January 1962, Arb.7506.

(3) - Since Case 13/61 de Geus v Bosch [1962] ECR 45.

(4) - Case C-291/96 Grado and Bashir [1997] ECR I-5531, paragraph 12, or even more recently in Case C-326/96 Levez [1998] ECR I-7835, paragraph 25.

(5) - Ibid; my emphasis.

(6) - Paragraph 33(4) of the Landarbeitsgesetz, for example.

(7) - See, in particular, Case C-262/88 Barber [1990] ECR I-1889, paragraph 13 (my emphasis) or Case C-33/89 Kowalska [1990] ECR I-2591, paragraphs 10 and 11.

(8) - Paragraph 23a(3) and (4) AngG.

(9) - Case C-444/93 Megner and Scheffel [1995] ECR I-4741, paragraph 24 (my emphasis).

(10) - See, in particular, Case C-342/93 Gillespie and Others [1996] ECR I-475, paragraph 16.

(11) - See, by analogy, Levez, cited above, paragraph 41.

(12) - See Paragraph 26 AngG and Paragraph 33(4) of the Landarbeitsgesetz.

(13) - See, for example, Case C-127/92 Enderby [1993] ECR I-5535, paragraph 17, and Case C-400/93 Royal Copenhagen [1995] ECR I-1275, paragraph 23.

(14) - Enderby, cited above.

(15) - Case 109/88 Danfoss [1989] ECR 3199, paragraph 16.

(16) - Enderby, cited above, paragraph 17.

(17) - Ibid.

(18) - Case C-343/92 Roks and Others [1994] ECR I-571, paragraph 33.

(19) - Case 171/88 Rinner-Kühn [1989] ECR 2743, paragraph 16.

(20) - According to the national court, in 1994 only 0.84% of those drawing parental leave pay were men and only 30% of the female workers affected could resume work immediately after the end of their parental leave. These statistics submitted by the national court have not been contested.

(21) - See, for example, Megner and Scheffel, cited above, paragraph 24

(22) - See, for example, Rinner-Kühn, cited above.

(23) - Ibid., paragraph 15.

(24) - See, for example, Case 170/84 Bilka [1986] ECR 1607, paragraph 37.

(25) - Case C-278/93 Freers and Speckmann [1996] ECR I-1165, paragraph 24.

(26) - Paragraph 30.

(27) - Case C-457/93 Lewark [1996] ECR I-243, paragraphs 26 to 30.

(28) - See, for example, Roks and Others, cited above, paragraphs 35 and 36.

(29) - Council Directive of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (OJ 1976 L 39, p.40).

(30) - See, in this connection, the judgment and the Opinion of Advocate General Tesauro in Case C-450/93 Kalanke [1995] ECR I-3051 and the judgment in Case C-409/95 Marschall [1997] ECR I-6363.

(31) - This interpretation is supported by all the parties in the main proceedings, the Commission and all the intervening Governments.

(32) - Since Case 16/65 Schwarze [1965] ECR 877.

(33) - See, for example, Case 126/80 Salonia [1981] ECR 1563.

(34) - Case 26/62 Van Gend en Loos [1963] ECR 1. See also points 27 to 29 of my Opinion and the case-law cited in the judgment in Case C-66/95 Sutton [1997] ECR I-2163.

(35) - Defrenne, cited above, paragraphs 12 and 24.

(36) - See Article 4 of Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women (OJ 1975 L 45, p.19), which provides that `Member States shall take the necessary measures to ensure that provisions appearing in collective agreements, wage scales, wage agreements 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'. See also, in particular, Case C-360/90 Bötel [1992] ECR I-3589 and Lewark, Freers and Speckmann and Barber, cited above, paragraph 32 of which points out that Article 119 prohibits any discrimination with regard to pay as between men and women, whatever the system which gives rise to such inequality.