Keywords

Summary



Keywords

1. Social policy — Men and women — Access to employment and working conditions — Equal treatment — Possibility for public-sector employees, on reaching a certain age, to take advantage of a scheme of part-time work — Exclusion from part-time work of employees entitled to a retirement pension at the full rate — Exclusion applying at the age of 60 years almost exclusively to women, as in most cases men are not affected until the age of 65 years — Indirect discrimination — Not permitted in the absence of objective justification — (Council Directive 76/207, Arts 2(1) and 5(1))

2. Social policy — Men and women — Access to employment and working conditions — Equal treatment — Directive 76/207 — Article 5(1) — Direct effect — Obligations and powers of the national court — Non-application of national provisions to the contrary — (Council Directive 76/207, Art. 5(1))

Summary

1. Articles 2(1) and 5(1) 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, must be interpreted as meaning that they preclude a provision of a collective agreement applicable to the public service which allows male and female employees to take advantage of a scheme of part-time work for older employees where under that provision the right to participate in such a scheme of part-time work applies only until the date on which the person concerned first becomes eligible for a retirement pension at the full rate under the statutory old-age insurance scheme and where the class of persons eligible for such a pension at the age of 60 consists almost exclusively of women whereas the class of persons entitled to receive such a pension only from the age of 65 consists almost exclusively of men. It would be otherwise only if the difference of treatment found to exist between the two categories of worker were justified by objective factors unrelated to any discrimination based on sex justified by objective criteria unrelated to any discrimination on grounds of sex.

In that regard, it is for the national court to ascertain, in the light of all the relevant factors and taking into account the possibility of achieving by other means the aims pursued by the provisions in question, whether such aims appear to be unrelated to any discrimination based on sex and whether those provisions, as a means to the achievement of certain aims, are capable of advancing those aims. Mere generalisations concerning the capacity of the scheme in question to encourage recruitment are not enough to show that the aim of the disputed provisions is unrelated to any discrimination based on sex or to provide evidence on the basis of which it could reasonably be considered that the means chosen are or could be suitable for achieving that aim.

Furthermore, although budgetary considerations may underlie a Member State's choice of social policy and influence the nature or scope of the social protection measures which it wishes to adopt, they do not in themselves constitute an aim pursued by that policy and cannot therefore justify discrimination against one of the sexes.

Last, it is for the employer to prove to the national court that the difference in treatment is justified by objective reasons unrelated to any discrimination on grounds of sex.

see paras 50-63, operative part 1

2. Wherever the provisions of a directive appear, as far as their subject-matter is concerned, to be unconditional and sufficiently precise, those provisions may be relied upon by individuals as against the Member State before the national court. Article 5(1) of Directive 76/207, which prohibits any discrimination on grounds of sex with regard to working conditions, including the conditions governing dismissal, is sufficiently precise to be relied upon by an individual as against the Member State and applied by a national court in order to prevent the application of any national provision which is inconsistent with that provision. In the light of those considerations, in the case of a breach of Directive 76/207 by legislative provisions or by provisions of collective agreements introducing discrimination contrary to that directive, the national courts are required to set aside that discrimination, using all the means at their disposal, and in particular by applying those provisions for the benefit of the class placed at a disadvantage, and are not required to request or await the setting aside of the provisions by the legislature, by collective negotiation or otherwise.

see paras 69-75, operative part 2