Case C-196/02

Vasiliki Nikoloudi

v

Organismos Tilepikinonion Ellados AE

(Reference for a preliminary ruling from the Irinodikio Athinon)

(Social policy – Male and female workers – Article 119 of the EC Treaty (Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC) – Directive 75/117/EEC – Equal pay – Directive 76/207/EEC – Equal treatment – Temporary part-time posts – Exclusion from appointment as an established member of staff – Calculation of length of service – Burden of proof)

Opinion of Advocate General Stix-Hackl delivered on 29 April 2004

Judgment of the Court (First Chamber), 10 March 2005

Summary of the Judgment

1. Social policy – Male and female workers – Equal pay – Equal treatment – National provision reserving a given job to women – Taking women on part-time under a contract of indefinite duration – No direct discrimination – Subsequent exclusion of part-time workers from the possibility of appointment as an established member of staff – Exclusion applying only to women – Direct discrimination – Not permissible under Directive 76/207 – Circumstance rendering such an exclusion permissible

(EC Treaty, Art. 119 (Arts 117 to 120 of the EC Treaty have been replaced by Arts 136 EC to 143 EC); Council Directive 76/207)

2. Social policy – Male and female workers – Access to employment and working conditions – Equal treatment – Exclusion by collective agreement of the appointment of part-time temporary staff as established staff – Exclusion applying essentially to women – Indirect discrimination – Not permissible in the absence of objective justification – Assessment to be made by the national court

(Council Directive 76/207, Art. 3)

3. Social policy – Male and female workers – Access to employment and working conditions – Equal treatment – Exclusion of part-time employment when calculating length of service – Exclusion applying essentially to women – Indirect discrimination – Not permissible in the absence of objective justification – Assessment to be made by the national court – Circumstances in which the proportional counting of part-time employment when calculating length of service is permissible

(Council Directive 76/207)

4. Social policy – Male and female workers – Access to employment and working conditions – Equal treatment – Burden of proving that there has been no direct or indirect discrimination

(Council Directive 97/80)

1. Article 119 of the Treaty and 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 conditions, are to be interpreted as meaning that the existence and application of a national provision under which only female cleaners, and therefore only women, can be taken on under a contract of indefinite duration for part-time work, do not constitute, in themselves, direct discrimination on grounds of sex against women. However, the subsequent exclusion of a possibility of appointment as an established member of staff by reference, ostensibly neutral as to the worker’s sex, to a category of workers which, under national rules having the force of law, is composed exclusively of women constitutes direct discrimination on grounds of sex within the meaning of Directive 76/207. In order for there to be no direct discrimination on grounds of sex, the factor characterising the category to which the excluded worker belongs must be such as to place that worker in a situation that is objectively different, with regard to appointment as an established member of staff, from the situation of workers who are eligible to become established.

(see para. 40, operative part 1)

2. The exclusion, brought about by collective agreements, of the appointment of part-time temporary staff as established staff constitutes indirect discrimination where it affects a much higher percentage of female workers than male workers. Such a situation is contrary to Article 3 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 conditions, unless the difference of treatment between these workers and those working full-time is justified by factors unrelated to any discrimination on grounds of sex. It is for the national court to determine whether that is the case.

(see para. 57, operative part 2)

3. Where the total exclusion of part-time employment when calculating length of service affects a much higher percentage of female workers than male workers, it constitutes indirect discrimination on grounds of sex contrary to 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 conditions, unless that exclusion is attributable to factors which are objectively justified and are unrelated to any discrimination on grounds of sex. It is for the national court to determine whether that is the case.

The proportional counting of part-time employment when making that calculation is also contrary to Directive 76/207, unless the employer establishes that it is justified by factors whose objectivity depends in particular on the aim pursued by taking length of service into account and, should it be a question of recognition of experience acquired, on the relationship between the nature of the duties carried out and the experience which performance of those duties brings after a certain number of hours of work have been completed.

(see para. 66, operative part 3)

4. Where employees plead that the principle of equal treatment has been infringed to their detriment and establish facts from which it may be presumed that there has been direct or indirect discrimination, Directive 97/80 on the burden of proof in cases of discrimination based on sex is to be interpreted as meaning that it shall be for the respondent to prove that there has been no breach of that principle.

(see para. 75, operative part 4)