Opinion of Mr Advocate General Darmon delivered on 19 April 1994. - Stadt Lengerich v Angelika Helmig and Waltraud Schmidt v Deutsche Angestellten-Krankenkasse and Elke Herzog v Arbeiter-Samariter-Bund Landverband Hamburg eV and Dagmar Lange v Bundesknappschaft Bochum and Angelika Kussfeld v Firma Detlef Bogdol GmbH and Ursula Ludewig v Kreis Segeberg. - References for a preliminary ruling: Landesarbeitsgericht Hamm, Arbeitsgericht Hamburg, Arbeitsgericht Bochum, Arbeitsgericht Elmshorn and Arbeitsgericht Neumünster - Allemagne. - Equal pay - Pay for overtime worked by part-time employees. - Joined cases C-399/92, C-409/92, C-425/92, C-34/93, C-50/93 and C-78/93.



European Court reports 1994 Page I-05727



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

1. Bearing in mind that the majority of part-time employees are women, does Article 119 of the EEC Treaty require that time worked by them in excess of the contractual working hours be paid at the same rate as those worked by full-time employees in excess of the working week fixed by collective agreement?

2. That is the principal question referred to the Court by five German courts in nearly identical cases, the main features of which I shall briefly describe.

3. A part-time employee (1) works hours in excess of the contractual working week. The employer pays them at the same rate as ordinary hours of work. The collective agreement provides that hours worked in excess of the ordinary working week of full-time workers (38.5 hours in the case of the BAT (2)) are to be paid at between 15 and 25% more than the hourly rate. (3)

4. The employee claims that she is entitled to that higher rate for all the hours worked beyond the contractual working hours but short of the normal working week and, faced with the employer' s refusal to pay at that rate, challenges that decision which is contrary, she claims, to Article 119 of the Treaty and 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 (4) (which I shall refer to as "the directive").

5. The questions which have been referred relate essentially to the following three points: (5)

(1) Is there indirect discrimination of the kind prohibited by Article 119 of the Treaty and the directive where a collective agreement provides for overtime supplements only for overtime worked in excess of the normal full-time working hours, with no supplement for overtime worked by part-time employees ° who are primarily women ° short of that threshold?

(2) If so, is such discrimination justified on objective grounds unrelated to discrimination on the grounds of sex in view of the fact that for full-time employees (i) the burden is greater and (ii) leisure-time is restricted?

(3) If part-time employees are entitled to a supplement for each hour worked over the contractual hours, how should that supplement be calculated?

6. Let us examine the first question.

7. Four preliminary remarks are called for.

8. In the first place, the discussion which follows applies both to Article 119 of the Treaty and to Article 1 of the directive implementing it.

9. Secondly, in accordance with the consistent case-law of the Court and Article 4 of the directive, as regards pay collective agreements must observe the same prohibition on discrimination based on sex as that which applies to legislation and other provisions. (6)

10. Thirdly, it is not disputed that most part-time employees are women and that discrimination affecting the former indirectly damages the latter.

11. Finally, it is agreed that overtime supplements constitute pay for the purposes of the first paragraph of Article 119, which must not be interpreted restrictively. (7)

12. That article lays down the principle of equal pay for men and women "for equal work". Care is taken to state in the third paragraph, under (b), that equal pay means "that pay for work at time rates shall be the same for the same job". (8) Article 1 of the directive provides that the principle of equal pay "... means, for the same work or for work to which equal value is attributed, the elimination of all discrimination on grounds of sex with regard to all aspects and conditions of remuneration". (9)

13. It was precisely with regard to legislation or provisions contained in collective agreements concerning part-time work that the Court has developed the case-law on indirect discrimination: (10) "... once a disadvantage resulting from the application of criteria not based on sex concerns a considerably larger number of women than men, that situation is incompatible with the principle of equal treatment unless it is shown that it may be explained by 'factors objectively justified and unconnected with discrimination based on sex' ". (11)

14. On each occasion, before even inquiring into the possibility of justification, the Court considered it necessary to determine whether there was unequal treatment between full-time workers and part-time workers or a situation which worked to the disadvantage of the latter.

15. That may be so where, in identical working conditions, part-time employees are paid at an hourly rate lower than that accorded to full-time workers. (12)

16. It is the same where such employees are excluded from occupational pension schemes (13) or deprived of pay when sick (14) or of the right to a temporary allowance on cessation of the employment relationship. (15)

17. There is also discrimination where the qualifying period for moving to a higher salary grade is doubled for part-time employees (16) or when the rules on compensation relating to training courses followed by part-time employees who are staff representatives are less favourable than those applicable to full-time employees. (17)

18. Lastly, there is unequal treatment when an insured person who has become unable to work is entitled to a minimum subsistence allowance on conditions which are less favourable solely because she was previously employed part-time. (18)

19. The Court stated the following rule in Bilka: (19) there is unequal treatment whenever the total remuneration paid to full-time workers is higher, hour for hour than that paid to part-time workers.

20. What about the provision in a collective agreement which provides for overtime supplements to be paid only where the weekly working time fixed by the collective agreement for full-time workers is exceeded? Are part-time employees treated differently to the latter?

21. It will be noted that such a provision is not discriminatory per se: it applies without distinction to all employees, whether full-time or part-time, once the hours worked in a week exceed the number fixed by the collective agreement.

22. It will also be noted that both full-time and part-time employees are then subject to the same demands: a greater physical effort and a reduction of their leisure-time, which are compensated for by the overtime supplement on identical terms, regardless of the working hours provided for in the individual contracts.

23. In that situation, therefore, the same work, of equal value, is paid in the same fashion, regardless of whether it is performed by a full-time or by a part-time employee. (20)

24. In addition, the conditions for obtaining the supplement ° the "threshold" above which the supplement is payable ° are fixed objectively by the collective agreement and do not depend on the terms of the individual contracts of employment.

25. And that is precisely the point on which the argument adopted by the applicants in the main proceedings encounters difficulty.

26. To claim that exceeding the contractual hours of a part-time employee must systematically bring entitlement to the supplement is equivalent to saying that the employee whose contract stipulates that she must work five hours is entitled to the supplement from the sixth hour onwards. Yet that hour is to be paid without a supplement not only to full-time workers but also to part-time workers whose contractual hours are more than five.

27. That view is puzzling.

28. The purpose of the overtime supplement is to recompense the extra effort contributed by the employee and to dissuade employers from making staff work longer hours than those fixed by the collective agreement, so that a priori it would seem to have little relevance to part-time work.

29. The applicants in the main proceedings go further: for the uniform criterion of the weekly working hours fixed by statute or by collective agreement they seek to substitute a fluctuating one which would vary with the contractual hours and which, on the pretext of removing an assumed inequality of treatment, would in fact give rise to a real inequality because, for the same number of hours worked, some workers would be paid the supplement, and others not.

30. In the collective agreements at issue in these cases the part-time employees are subject to the same rules as others, but in proportion to their working hours. I consider that to be "the only valid point of reference", to quote Kowalska. (21)

31. There would be unequal treatment conferring an advantage on part-time employees, however, of a significance inversely proportional to the length of their contractual working hours if the supplements were payable as soon as those hours were exceeded.

32. As the United Kingdom rightly points out, the effect of that approach would be to dissuade employers from taking on part-time employees whose pay for the same number of hours worked would be more costly for the undertaking which finds it necessary to have recourse to overtime. (22)

33. I conclude that Article 119 of the Treaty does not prevent collective agreements from providing for overtime supplements to be payable only where the weekly working hours laid down by them are exceeded.

34. The discussion of the second question is thus a subsidiary matter, relevant only if the Court replies to the first question in the affirmative.

35. Is the exclusion by a collective agreement of part-time employees from any kind of overtime supplement justified by objective factors unrelated to considerations based on grounds of sex?

36. The Court has held that

"It is for the national court, which has sole jurisdiction to assess the facts and interpret the national legislation, to determine whether and to what extent a legislative provision, which, though applying independently of the sex of the worker, actually affects a greater number of women than men, is justified by reasons which are objective and unrelated to any discrimination on grounds of sex". (23)

37. For that purpose, the Court has stated the following criteria for the guidance of the national courts: the measures chosen must correspond to a real need on the part of the undertaking, be appropriate to achieve the objectives pursued and necessary to that end. (24)

38. In Rummler (25) the Court stated that the directive did not prohibit "the use, in a job classification system for the purpose of determining rates of pay, of the criterion of muscle demand or muscular effort or that of the heaviness of the work if, in view of the nature of the tasks involved, the work to be performed does require the use of a certain degree of physical strength, so long as the system as a whole, by taking into account other criteria, precludes any discrimination on grounds of sex". (26)

39. Similarly, the additional fatigue and the reduction in leisure-time caused by working overtime in addition to the ordinary working week constitute objective reasons which may justify the exclusion by a collective agreement of part-time employees from supplements where the overtime they work does not exceed those hours.

40. As regards the argument concerning the educational commitments of the applicants in the main proceedings, I would make just one observation.

41. The Court stated in Bilka that:

"Article 119 does not have the effect of requiring an employer to organize its occupational pension scheme in such a manner as to take into account the particular difficulties faced by persons with family responsibilities in meeting the conditions for entitlement to such a pension". (27)

42. In this case, to take such factors into account would have the effect of conferring an advantage on part-time employees compared with full-time employees who may, however, have the same family commitments.

43. I conclude therefore that the additional physical effort and the restriction on the use of free time entailed in working overtime constitute objective reasons to be appraised by the national courts, which may justify a difference in treatment as between part-time and full-time employees.

44. In the light of that result my treatment of the third question may be even more brief.

45. If part-time employees may claim entitlement to overtime supplements as soon as they exceed the working hours provided for by their contract, how is such a supplement to be calculated? May they claim the full amount of the supplement provided for in the collective agreement for full-time employees or only a percentage thereof?

46. If the Court considers that in such a case supplements are payable, they can only be proportional to the number of hours worked.

47. That follows from the statement of the Court in Kowalska, citing the judgment in Ruzius-Wilbrink, (28) that:

"in a case of indirect discrimination the members of the class of persons placed at a disadvantage are entitled to have the same scheme applied to them as that applied to other workers, on a basis proportional to their working time". (29)

That rule should apply regardless of whether the discriminatory provision is a statutory one or one contained in a collective agreement. (30)

48. One last observation. If the Court considers that these instances reveal discrimination of the kind prohibited by Article 119, it is my view that the effects of the judgment in time need not be restricted.

49. In my Opinion in Nimz, cited above, I said that "the direct effect of Article 119 of the EEC Treaty has been acknowledged in Community law since 1976. The social partners are therefore not exempt from taking into account the requirements of that provision when they negotiate collective agreements". (31)

50. It will be noted that in Kowalska and Nimz, in which the Court found indirect discrimination in a provision contained in a collective agreement, it did not restrict the effects of the decision ratione temporis.

51. I therefore propose that the Court rule as follows:

° Article 119 of the EEC Treaty and 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 do not prohibit a collective agreement from providing for the payment of overtime supplements only where the normal working week fixed for full-time employees is exceeded;

° alternatively, the extra physical effort and the loss of free time entailed in working overtime constitute objective reasons unrelated to discrimination based on sex which may justify different treatment as between full-time and part-time employees, that assessment being a matter for the national courts;

° in the further alternative, the overtime supplement payable to part-time employees who work more than the contractual hours but less than the normal working week fixed by the collective agreement must be reduced proportionately to the number of hours actually worked.

(*) Original language: French.

(1) ° 19.5 hours a week in Case C-399/92, 23.75 hours in Case C-409/92, 30 hours in Case C-425/92, not given in Case C-34/93, 3.75 hours x 6 days a week in Case C-50/93, 21 hours a week, and subsequently three-quarters of the normal working week, in Case C-78/93.

(2) ° The collective agreement for federal employees (Bundesangestelltentarifvertrag).

(3) ° See Articles 15(1), 17(1) and 35(1), second sentence, (a), of the BAT, applicable in Cases C-399/92, C-425/92 and C-78/93. The collective agreement relating to private health insurance scheme employees (Ersatzkassentarifvertrag), applicable in Case C-409/92, the collective agreement for employees covered by the miners' insurance fund (Knappschaftsangestelltentarifvertrag), applicable in Case C-34/93 and the collective agreement applicable to employees in the industrial cleaning sector (Rahmentarifvertrag fuer die gewerblichen Arbeitnehmer im Gebaeudereinigerhandwerk), applicable in Case C-50/93, contain equivalent provisions.

(4) ° OJ 1975 L 45, p. 19.

(5) ° Only the first question was referred in Cases C-409/92 and C-50/93. Only the two first questions were referred in Cases C-425/92 and C-78/93.

(6) ° Case C-33/89 Kowalska [1990] ECR I-2591, paragraphs 12 and 18; Case C-184/89 Nimz [1991] ECR I-297, paragraph 11; and Case C-127/92 Enderby [1993] ECR I-5535, paragraph 21.

(7) ° Case C-262/88 Barber [1990] ECR I-1889, paragraph 12, and, most recently, Case C-173/91 Commission v Belgium [1993] ECR I-673, paragraph 13.

(8) ° My emphasis.

(9) ° My emphasis.

(10) ° See Darmon and Huglo: L' égalité de traitement entre les hommes et les femmes dans la jurisprudence de la Cour de justice des Communautés européennes: un univers en expansion, RTDE 1992, p. 1, 14.

(11) ° Ibidem.

(12) ° Case 96/80 Jenkins [1981] ECR 911, paragraph 10 et seq.

(13) ° Case 170/84 Bilka [1986] ECR 1607, paragraph 27.

(14) ° Case 171/88 Rinner-Kuehn [1989] ECR 2743, paragraphs 10 to 12.

(15) ° Kowalska (cited in footnote 6), paragraph 13. In the two last-mentioned cases the contested rule was applied by the BAT.

(16) ° Nimz (cited in footnote 6), paragraph 12.

(17) ° Case C-360/90 Boetel [1992] ECR I-3589, paragraph 17.

(18) ° Case C-102/88 Ruzius-Wilbrink [1989] ECR 4311, paragraph 13.

(19) ° Cited in footnote 13, paragraph 27. See also Rinner-Kuehn, paragraph 10, Kowalska, paragraphs 13, 19 and 20, and Boetel, paragraphs 16 and 17.

(20) ° See paragraphs 13 and 14 of the judgment in Case 237/85 Rummler [1986] ECR 2101. That premiss is not affected by the example given by P. Schueren in Der Anspruch Teilzeitbeschaeftigter auf UEberstundenzuschlaege, RdA 1990, pp. 18 and 19. That is because 48 hours' work costs the employer more if performed by a full-time worker (who will receive an overtime supplement) than when performed by two part-time employees neither of whom will work more than the standard working week. Does it not show here that the purpose of the rules, which is to make overtime more costly, is well achieved, in addition to encouraging part-time work?

(21) ° Paragraph 20.

(22) ° Paragraph 3.7 of its Observations.

(23) ° Rinner-Kuehn, cited above, paragraph 15.

(24) ° Bilka, cited above, paragraph 36.

(25) ° Cited in footnote 20.

(26) ° Paragraph 17.

(27) ° Paragraph 43.

(28) ° Cited in footnote 18.

(29) ° Paragraph 19.

(30) ° Ibidem. See also paragraphs 19 and 20 of Nimz, cited above.

(31) ° Paragraph 21 of the Opinion ([1991] ECR I-312). See also paragraph 24 of my Opinion in Kowalska ([1990] ECR I-2605).