4.

It considered that according to the judgment of the Court of 11 March 1981 in Woningham and Humphreys v Lloyds Bank Ltd (Case 69/80 [1981] ECR 767) retirement benefits constitute ‘pay’within the meaning of the second paragraph of Article 119 of the EEC Treaty. It then analysed the facts of the case with reference to the judgment of the Court in the Jenkins case, referring first of all to paragraph 13 of the decision which reads as follows: ‘... if it is established that a considerably smaller percentage of women than of men perform the minimum number of weekly working hours required in order to be able to claim the fulltime hourly rate of pay, the inequality in pay will be contrary to Article 119 of the Treaty where, regard being had to the difficulties encountered by women in arranging to work that minimum number of hours per week, the pay policy of the undertaking in question cannot be explained by factors other than discrimination based on sex’. ([1981] ECR at pp. 925-926). From the figures provided to the Bundesarbeitsgericht it appears that over a period of nine years on average 72% of Bilka's employees were female and 28% were male. 90% of the male employees worked fulltime and 10% pan-time, while 61.5% of the female employees worked fulltime and 38.5% part-time. Taking the workforce as a whole, therefore, 2.8% were male part-time employees and 27.7% were female part-time employees, a ratio of one man to 10 women. The Bundesarbeitsgericht takes the view that the pension scheme therefore works to the detriment of 10 times as many women as men. It considers that the principles so far set out in the judgments of the Court are not sufficient to enable it to reach a decision in this case, and that those principles must therefore be further developed by the Court of Justice. With regard to the Jenkins case, it asks in essence whether that judgment refers only to ‘disguised’ discrimination, which is thus , intentional, or if it may also apply to ‘indirect’ discrimination, that is to say purely objective discrimination. In that case there would be discrimination where because of women's traditional family responsibilities they were in fact excluded from entitlement to benefits. Since the Court itself emphasized, in the Jenkins judgment, the key importance of the fact that ‘a considerably smaller percentage of women than of men perform the minimum number of weekly working hours required...’ (paragraph 13, referred to above), the Bundesarbeitsgericht wishes to know what effect must be given to that factor. The first question referred is intended to clarify that point. Furthermore, in the same judgment the Court held that ‘(11) ...the fact that work paid at time rates is remunerated at an hourly rate which varies according to the number of hours worked per week does not offend against the principle of equal pay laid down in Article 119 of the Treaty in so far as the difference in pay between part-time work and fulltime work is attributable to factors which are objectively justified and are in no way related to any discrimination based on sex. (12) Such may be the case, in particular, when by giving hourly rates of pay which are lower for part-time work than those for fulltime work the employer is endeavouring, on economic grounds which may be objectively justified, to encourage fulltime work irrespective of the sex of the worker.’ May one therefore, asks the Bundesarbeitsgericht, take into account a staff policy which favours fulltime work or must one also consider that such a policy is justified only if it is based on economic grounds? That is the issue raised by Question 2 (a). Finally, the Bundesarbeitsgericht asks whether an employer is not in any event under an obligation to organize its pension scheme in such a way as to avoid placing at a disadvantage employees who have family responsibilities, that is to say, in practice, women. It has therefore referred to the Court Question 2 (b).