Case C-313/02

Nicole Wippel

v

Peek & Cloppenburg GmbH & Co. KG

(Reference for a preliminary ruling from the Oberster Gerichtshof)

(Directive 97/81/EC – Directive 76/207/EEC – Social policy – Equal treatment as between part-time and full-time workers – Equal treatment as between men and women – Working hours and organisation of working-time)

Summary of the Judgment

1. Social policy – Men and women – Access to employment and working conditions – Equal treatment – Part-time workers – Part-time employment contract providing for the length and organisation of working time according to need – Contract within the scope of Directive 76/207 and the Framework Agreement annexed to Directive 97/81

(Council Directives 76/207 and 97/81)

2. Social policy – Men and women – Access to employment and working conditions – Equal treatment – Part-time workers – National provision regulating the maximum working time and its organisation identically for full-time and part-time workers – Whether permissible

(Council Directives 76/207, Arts 2(1) and 5(1), and 97/81, annexed Framework Agreement, Clause 4)

3. Social policy – Men and women – Access to employment and working conditions – Equal treatment – Part-time workers – Part-time employment contract providing for the length and organisation of working time according to need and allowing the worker the right to accept or refuse such work – Whether permissible in the absence of comparable full-time workers in the same undertaking

(Council Directives 76/207, Arts 2(1) and 5(1), and 97/81, annexed Framework Agreement, Clause 4)

1. A worker with a contract of employment under which hours of work and the organisation of working time are dependent upon the quantity of available work and are determined only on a case-by-case basis by agreement between the parties, and which affects, therefore, the pursuit of occupational activity by that worker by scheduling his working time according to need, comes within the scope 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.

Such workers also come within the scope of the Framework Agreement annexed to Directive 97/81 concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC where they have a contract or employment relationship as defined by the law, collective agreement or practices in force in the Member State and they are employees whose normal working hours, calculated on a weekly basis or on average over an employment period which may be up to a year, are less than those of a comparable full-time worker, within the meaning of Clause 3(2) of that framework agreement. Part-time workers working on a casual basis come within the scope of that framework agreement if the Member State has not excluded them under Clause 2(2) thereof, wholly or partly, from the benefit of the terms of that agreement.

(see paras 30, 40, operative part 1)

2. Clause 4 of the Framework Agreement annexed to Directive 97/81 concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC and 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 not precluding a national provision which lays down a basic maximum working time of 40 hours per week and 8 hours per day. That provision also regulates maximum working time and the organisation of working time in regard to both full-time and part-time workers whose maximum working time is, by definition, less than that for full-time work and thus does not result in less favourable treatment of part-time workers in relation to full-time workers in a comparable situation.

(see paras 49-51, operative part 2)

3. Clause 4 of the Framework Agreement annexed to Directive 97/81 concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC and 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 do not preclude a contract of part-time employment of workers of an undertaking under which the length of weekly working time and the organisation of working time are not fixed but are dependent on quantitative needs in terms of work to be performed determined on a case-by-case basis, such workers being entitled to accept or refuse that work, in circumstances where all the contracts of employment of the other employees of the same undertaking make provision for the length of weekly working time and for the organisation of working time. Such contracts cover employment relationships with a different subject-matter and purpose and therefore do not concern ‘comparable full-time workers’, within the meaning of Clause 4 of the Framework Agreement.

(see paras 61-62, 66, operative part 2)