3.

In Question (2) the Arbeitsgericht wishes to know whether the view to which it inclines is correct: that is to say, whether it follows from the directive that in deciding to what extent a job makes demands on the muscles and whether or not it is heavy, reference must be made to whether or not that is the case for women. The defendant in the main proceedings has argued in that regard that if it is assumed that the key factor is the job carried out and not the qualification for the job, the directive does not require that female values should be used or that different standards should apply for men and for women. The calculation of wages in such a manner would not be consistent with the requirement of equal treatment. The United Kingdom takes a similar view. It argues first of all that the fact that the first paragraph of Article 1 of the directive speaks of work to which equal value is attributed does not mean that an assessment must be made on the basis of the relative demands which a job makes on the physical resources of men and women. If that were the case, an employer could not pay particularly high wages for jobs which were particularly strenuous but would have to pay a considerable number of workers at the highest rate. That could not have been the intention of the authors of the directive. In the view of the United Kingdom it is quite permissible, under the directive, to establish wage classifications reflecting demand on the muscles and the heaviness of the work and to use male values as a reference if those wage rates correspond to the effort actually required in carrying out the job. The question is thus whether classifications of that kind are based on objectively justifiable grounds. If there are such grounds, that is to say, if a job is in fact particularly strenuous, it must be possible to pay higher wages for such a job according to corresponding criteria since that may be economically necessary in order to attract the relatively few persons who are able to do such a job. The Commission, finally, has argued that the directive does no more than lay down the principle that a job classification system must be organized in such a manner as to preclude discrimination on grounds of sex; it thus requires that the system as a whole should entail no discrimination and that it should be organized in such a manner that individual classification decisions are in accordance with the principle of equal treatment. As is clear from Article 2, the directive assumes that its application in particular cases is a matter for the national courts; no precise rules can be inferred from the directive to the effect that in using the classification criterion of ‘demand on the muscles’ female values must be used. At most it may be said that the application of the principle of nondiscrimination and the avoidance of discrimination in individual cases may require that female values should be given particular weight or allowed to prevail in the assessment of specific cases. With regard to the issues addressed by Question (2), the Arbeitsgericht's remarks may be found quite convincing; it said that discrimination against women could arise not only when in using the classification criteria of ‘heaviness of the work’ and ‘demand on the muscles’, reference was made to male values or to average values common to both sexes (which will in general probably be more difficult for women to achieve than men, as the United Kingdom correctly pointed out) but also where special female values are used only for women, as the judgments of the Bundesarbeitsgericht suggest. Since under such a system women may obtain a higher classification for a job requiring relatively little effort, the result may be that women have less chance of obtaining such jobs because preference is given to men, who will be paid less because the demand on their muscles is lower. Although the Arbeitsgericht's view (reference only to female values) is certainly attractive, it must not be forgotten that the result could be that above a relatively low level of muscular demand — from the point of view of male values — there would be no further wage differentiation. Differentiation may however be essential for a fair and appropriate wage structure, in part because it might otherwise be difficult to find persons willing to take particularly heavy jobs. It may be imagined that problems of that kind became apparent during the preparation of the directive and that is why no specific rules were laid down for the practical application of the principle of equal treatment in the establishment of classification criteria. Indeed, all that can be drawn from the directive — and here one must agree with the Commission — is the general principle that a classification system as a whole must not be discriminatory (which may for instance be the case, as the United Kingdom has pointed out, where such a system attaches too much importance to criteria such as the heaviness of work and demands on the muscles to the detriment of other criteria). It is also implicit in the directive that in each individual case efforts must be made to avoid discrimination, and as the Commission pointed out, it may sometimes be appropriate to apply female values in the use of criteria such as those at issue in the main proceedings. There is little more that can be said with regard to Question (2) as it is phrased; that is to say, it does not appear possible to answer it generally in the affirmative.