Opinion of Mr Advocate General Darmon delivered on 28 January 1992. - Arbeiterwohlfahrt der Stadt Berlin e.V. v Monika Bötel. - Reference for a preliminary ruling: Landesarbeitsgericht Berlin - Germany. - Equal pay - Compensation for training courses attended by part-time employees who are members of staff councils. - Case C-360/90.



European Court reports 1992 Page I-03589

Swedish special edition Page I-00127

Finnish special edition Page I-00171



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

1. In this reference for a preliminary ruling, the Landesarbeitsgericht (Higher Labour Court) Berlin asks the Court to consider the situation of part-time workers in the light of the Community principle of equal treatment for men and women in the particular context of what might be termed "in-house social policy".

2. The Court is aware of the facts. Since July 1981 Monika Boetel has been employed as a part-time home help by the Arbeiterwohlfahrt der Stadt Berlin e.V., a voluntary association providing welfare services in the Land of Berlin. Her average working week is 29.25 hours. Since 1985, Mrs Boetel has been chairman of the staff council of the Neukoelln branch of the Arbeiterwohlfahrt der Stadt Berlin. Between 6 September and 8 December 1989 she attended six training seminars organized by the Public Service, Transport and Communications Trades Union covering, inter alia, employment law, industrial relations law and the organization of work sessions for staff councils. In order to attend the courses, she was given special leave by her employer pursuant to Paragraph 37(2) of the Betriebsverfassungsgesetz (Law on industrial relations within undertakings) of 15 January 1972, (1) which provides: "Staff council members shall be released without loss of pay from their normal work if and in so far as the size and nature of the undertaking make such release necessary in order to perform their duties properly". Since the duration of the seminars exceeded her working hours, Mrs Boetel also devoted part of her leisure time to attending them, but was paid by her employer only up to the limit of her normal working hours. However, since the seminars lasted less than 40 hours per week, which was the full-time working week in force at the time, full-time workers received their normal salary. It is common ground that if Mrs Boetel had been paid up to the limit of the 40-hour full-time working week, she would also have received her salary for a period of 50.3 hours, representing her own leisure time spent attending the seminars. She brought an action before the Arbeitsgericht (Labour Court) Berlin seeking compensation in the form either of paid leave to be taken at a later date or of payment of DM 765.06 as overtime pay. By judgment of 18 May 1990, the Arbeitsgericht upheld her claim and granted her compensation in the form of paid leave. An appeal was lodged against that decision.

3. The Landesarbeitsgericht Berlin, hearing the appeal, referred to this Court a question which seeks, essentially, to ascertain whether Article 119 of the EEC Treaty and Council Directive 75/117/EEC (2) preclude national legislation from ruling out compensation in the form of leave or pay up to the limit of full-time working hours for part-time workers who are staff council members and must attend training courses the duration of which exceeds their normal working hours, where considerably more women than men are employed on a part-time basis.

4. There is a preliminary difficulty to be considered. The national court referred to Article 119 of the EEC Treaty and Directive 75/117/EEC, but both the Commission and the German Government raise the question whether the compensation in issue is a matter of pay or of working conditions. The principle of equal treatment was applied to working conditions by Council Directive 76/207/EEC, (3) so it must be determined which is the relevant legislative text.

5. The Court has traditionally defined "pay", in the field of equal treatment for men and women, as comprising any

"consideration, whether in cash or in kind, whether immediate or future, provided that the worker receives it, albeit indirectly, in respect of his employment from his employer". (4)

6. The Court has already held that continued payment of wages to an employee in the event of illness falls within the concept of "pay", even if a proportion of those wages is in some cases reimbursed by the sickness insurance funds. (5) In the present case, Mrs Boetel is not seeking permission to attend training courses, and the Court is not asked to consider the circumstances in which an employer may or may not treat part-time and full-time workers differently as regards the granting of leave for such purposes. Such difficulties would undoubtedly have had to be considered from the point of view of working conditions. Here, however, the only issue is compensation for time spent attending such training courses, whether in the form of extra pay in respect of overtime or extra leave, paid by the employer, to be taken at a later date. I do not feel that too much importance should be attached to the fact that the compensation may take two possible forms. If extra salary payments naturally fall within the concept of "pay", then the same is true, in my view, of extra paid leave. In the latter case, sums are paid by the employer in respect of the employment, with no corresponding work being performed by the employee. It is a situation very similar to that in which wages continue to be paid to an employee in the event of illness ° with which the Court' s judgment in Rinner-Kuehn (6) was concerned ° or to redundancy compensation. In Barber, (7) the Court held that

"the fact that certain benefits are paid after the termination of the employment relationship does not prevent them from being in the nature of pay, within the meaning of Article 119 of the Treaty" (8)

and as regards in particular redundancy compensation it held that it

"constitutes a form of pay to which the worker is entitled in respect of his employment (...) which provides him with a source of income during the period in which he is seeking new employment." (9)

7. The purpose of compensation for hours spent in training is to provide an employee who is a member of a staff council with a source of income even though he provides no work in return during those hours. The principles underlying the Court' s case-law thus seem to point to the conclusion that compensation for training periods falls within the concept of "pay".

8. Let us now turn to the national court' s question itself. Here I shall assume that the considerations set out below, on the question whether or not there is any discrimination, would be the same if the Court decided to examine the question from the point of view of equal treatment in the matter of working conditions.

9. Let us immediately dismiss from consideration Paragraph 37(3) of the Betriebsverfassungsgesetz, which is referred to in some written observations and which the national court appears to be prepared to apply by analogy to Mrs Boetel' s case. That subparagraph provides: "As compensation for staff council work which, for reasons connected with the undertaking, takes place outside working hours, staff council members shall be entitled to a corresponding amount of paid leave". (10)

10. It appears that the prevailing German case-law holds that Paragraph 37(3) of the Betriebsverfassungsgesetz cannot be applied by analogy to training courses. (11) It is not for this Court to say whether there should be such application by analogy; that is a question for the national court. The question referred by the national court does not, for that matter, refer to that subparagraph; it is quite naturally confined to seeking a ruling on the interpretation of the Community rules and, more specifically, on what is allowed or prohibited by those rules. The Court' s consideration should thus be confined to the provisions of Paragraph 37(2) of the Betriebsverfassungsgesetz.

11. The Court' s case-law with regard to the position of part-time workers is quite clear. Since the judgments in Jenkins v Kingsgate (12) and Bilka v Weber von Hartz, (13) it has been established that

"If (...) it should be found that a much lower proportion of women than of men work full time, the exclusion of part-time workers from (certain benefits) would be contrary to Article 119 of the Treaty where, taking into account the difficulties encountered by women workers in working full-time, that measure could not be explained by factors which exclude any discrimination on grounds of sex." (14)

12. The scope of that ruling was extended by the judgment in Rinner-Kuehn (15) to cover cases where the difference in treatment of part-time workers arises out of a legislative provision.

13. It is open to the employer or the legislature to prove that the difference in treatment suffered by part-time workers may be explained by objectively justified factors unrelated to any discrimination on grounds of sex. (16)

14. In its order for reference, the national court states that women accounted for 89.2% of part-time workers in 1987 and 86% in 1989. Those figures are not challenged by any of the parties who have submitted observations in these proceedings.

15. In order to ascertain whether or not there is discrimination against part-time workers, it must first be established whether they are treated differently from full-time workers.

16. Regardless of his working hours, an employee who is a member of a staff council receives the same salary as he would have received if he had not attended the training courses. The only difference is that a part-time worker must, if the duration of the course exceeds his working hours, devote some of his own leisure time to attending it, whereas a full-time worker may attend the same course without needing to use any of his leisure time for that purpose. It may, however, be pointed out that the situation would be the same in the case of a full-time worker if the duration of the course exceeded his normal working time. That hypothesis should, in my opinion, be disregarded since in order to determine whether or not there is discrimination, the situation of part-time workers should be compared with that of full-time workers in the same terms, and the Court' s consideration should be confined to whether or not a part-time worker may rely on the principle of equal treatment to claim compensation for the leisure time he has spent in attending training courses up to the limit of the full-time working hours in force in the undertaking, since full-time workers receive compensation up to that limit, even if the duration of the courses attended is greater.

17. The difference in treatment thus lies in the fact that part-time workers are obliged to give up part of their leisure time in order to attend training courses, whereas that obligation entails less of a burden in the case of full-time workers. That difference is not without practical significance, since the majority of part-time workers are women whose leisure time is still often taken up by child-rearing and household tasks. Is such a difference in treatment objectively justified?

18. Admittedly, the Court' s case-law generally leaves it to the national court to determine whether the provision concerned, 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. (17)

19. It does, however, seem that in a number of its judgments the Court has itself ruled that the justifications put forward by parties submitting observations in the preliminary-ruling proceedings may constitute "reasons which are objective and unrelated to any discrimination on grounds of sex". In Rinner-Kuehn, for instance, the Court rejected the German Government' s argument that part-time workers were not as integrated in, or as dependent on, the undertaking employing them as other workers, on the ground that:

"those considerations, in so far as they are only generalizations about certain categories of workers, do not enable criteria which are both objective and unrelated to any discrimination on grounds of sex to be identified." (18)

20. Likewise, in its judgment in Ruzius-Wilbrink v Bedrijfsvereniging voor Overheidsdiensten, the Court itself rejected the reason put forward to justify the difference of treatment between persons who worked on a part-time basis before the onset of their disability and other beneficiaries, namely that it would be unjust to grant part-time workers an allowance higher than the income previously received. (19)

21. Again, in Nimz v Freie und Hansestadt Hamburg, the Court held that the argument that full-time employees or those who work for three-quarters of normal working time acquire more quickly than others the abilities and skills relating to their particular job was not one which made it possible to identify criteria which are both objective and unrelated to any discrimination on grounds of sex. (20)

22. Thus, while it is for the national court to determine in each case whether there exist factors which are objective and unrelated to any discrimination on grounds of sex, this Court may still indicate to the national court reasons which can never constitute such factors. I propose that it should do so in the present case, in order to provide the national court with a useful answer which is not confined to stating whether a difference in treatment exists ° and its existence does not seem to be difficult to establish here.

23. In the German Government' s view, the difference in treatment is due to the difference in working hours, and discrimination cannot be considered to be established unless staff council work is regarded as a special kind of work to be performed under the contract of employment.

24. Requirement of such a condition is not, in my opinion, irrelevant. The employee is in this case a member of the staff council, that is to say, in the words used by the German Government in its written observations, the holder of "an elective mandate conferred by the workers of the undertaking to keep a collective and independent watch over staff interests." Furthermore, the courses in question concern subjects with which staff council members must be familiar in order to carry out their duties properly. Any difference in treatment as between full-time and part-time workers therefore seems to entail discrimination against the latter inasmuch as it will dissuade them either from accepting any responsibility for watching over staff interests or from acquiring the knowledge necessary for that purpose. And it cannot be denied that a course in employment law or industrial relations law requires, if it is to be effective, the same time and the same assiduity of attendance from a part-time as from a full-time worker.

25. Although attendance at such courses is not, strictly speaking, included among the tasks to be performed under the contract of employment, the duties of a staff council member are nevertheless not entirely unrelated to the employment relationship, inasmuch as they serve to further employees' interests and thus encourage the good industrial relations within the undertaking which it is in the employer' s interest to establish with competent and well-informed staff representatives.

26. Nor, finally, can it be denied that such discrimination against part-time workers who are staff council members affects in fact all the part-time workers in the undertaking who are not only dissuaded, as I have said, from accepting such duties but will also encounter some difficulty in finding a representative from among their specific category of employees. Since, as the German Government pointed out in Rinner-Kuehn, (21) such workers are less integrated into the undertaking than full-time workers, care must be taken, in my view, to ensure that they are able to look after their interests by having, inter alia, their own representatives on staff councils. The difference in treatment which I have shown does not therefore appear to be unrelated to any consideration based on sex within the meaning of the Court' s case-law.

27. It is still possible for the Member State concerned to prove to the national court that other factors which might themselves be regarded as objectively justified and unrelated to any discrimination on grounds of sex exist.

28. Two final points. When compensating part-time workers up to the limit of the full-time working hours applicable within the undertaking, it is perhaps better, in view of the great variation in working hours from one day to the next, to take into consideration weekly or monthly rather than daily working hours. It is, however, for the national court to make that choice by determining which solution is the most likely to ensure that effect is given to the Community principle of equal treatment. The same applies to the form which the compensation is to take ° paid leave to be taken at a later date or additional overtime pay.

29. I therefore propose that the Court should 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, preclude application of a provision of national law which deprives part-time workers who are staff council members attending training courses which last longer than their normal working hours and which can help them to carry out their duties effectively of any compensation in the form of paid leave or extra pay up to the limit of the full-time working hours applicable in the same undertaking, where considerably more women than men hold such part-time posts, unless the Member State can establish that the legislation in question is justified by reasons which are objective and unrelated to any discrimination on grounds of sex.

(*) Original language: French.

(1) ° Bundesgesetzblatt I, p. 13.

(2) ° 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 (OJ 1975 L 45, p. 19).

(3) ° Council Directive 76/207/EEC of 9 February 1976 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 (OJ 1976 L 39, p. 40).

(4) ° For example, Case C-262/88 Barber v Guardian Royal Exchange [1990] ECR I-1889.

(5) ° Case 171/88 Rinner-Kuehn v FWW Spezial-Gebaeudereinigung [1989] ECR 2743, paragraph 7; my Opinion, p. 2751, point 15.

(6) ° Cited above.

(7) ° Cited above.

(8) ° Paragraph 12.

(9) ° Paragraph 13.

(10) ° Emphasis added.

(11) ° Judgment of the Bundesarbeitsgericht of 19 July 1977, 1 AZR 302/74, Nachschlagewerk des Bundesarbeitsgerichts AP 1978, No 31, Paragraph 37 of the Betriebsverfassungsgesetz 1972, p. 89.

(12) ° Case 96/80 Jenkins v Kingsgate [1981] ECR 911.

(13) ° Case 170/84 Bilka v Weber von Hartz [1986] ECR 1607.

(14) ° Ibid., paragraph 29.

(15) ° Cited above.

(16) ° See, for example, Bilka v Weber von Hartz, paragraph 30.

(17) ° For example, Rinner-Kuehn, paragraph 15.

(18) ° Rinner-Kuehn, paragraph 14.

(19) ° Case C-102/88 Ruzius-Wilbrink v Bedrijfsvereniging voor Overheidsdiensten [1989] ECR 4311, paragraph 16.

(20) ° Judgment of 7 February 1991 in Case 184/89 Nimz v Freie und Hansestadt Hamburg, not yet published, paragraphs 13 and 14.

(21) ° Cited above.