Opinion of Mr Advocate General Darmon delivered on 19 April 1989. - Ingrid Rinner-Kühn v FWW Spezial-Gebäudereinigung GmbH & Co. KG. - Reference for a preliminary ruling: Arbeitsgericht Oldenburg - Germany. - Continued payment of wates in the event of illness - Exclusion of part-time workers - Article 119 of the EEC Treaty. - Case 171/88.



European Court reports 1989 Page 02743



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

1 . The Arbeitsgericht Oldenburg has referred to this Court for a preliminary ruling a question which, in substance, seeks to determine the influence of the principle that there may be no discrimination between men and women employees on a legislative provision relating to part-time employment .

2 . The facts are as follows . Mrs Rinner-Kuehn has been employed as an office cleaner by an office-cleaning business in Delmenhorst ( Federal Republic of Germany ) since May 1985; her working week is 10 hours . On 16 January 1988 she claimed the continued payment of her wages for a period of eight hours during which she had been absent from work owing to illness . Her employer refused to accept this claim by relying on the Lohnfortzahlungsgesetz ( Law on the continued payment of wages ), which provides that employed persons whose normal period of work does not exceed 10 hours per week or 45 hours per month may not continue to receive their wages in the event of sickness .

3 . Before the Arbeitsgericht Oldenburg, before which the case came, Mrs Rinner-Kuehn submitted that that provision constituted discrimination against women and was not compatible with Article 119 of the EEC Treaty since the number of women in part-time employment was much higher than the number of men so employed .

4 . The national court therefore referred to this Court a preliminary question relating to the compatibility of the Lohnfortzahlungsgesetz with the provisions of both Article 119 of the Treaty and Council Directive 75/117/EEC of 10 February 1975 ( hereinafter referred to as "the Directive "). ( 1 )

5 . This is not the first time that the question of persons in part-time employment has been raised before this Court . I will revert to that question later, for we must first resolve a difficulty which did not escape the Commission' s notice : it is whether or not the continued payment of wages during illness should be recognized in law as "pay" for the purposes of Article 119 of the Treaty .

6 . The principle that there may be no discrimination between men and women which is set out in Article 119 relates to pay, which is defined as wages "and any other consideration, whether in case or in kind, which the worker receives, directly or indirectly, in respect of his employment from his employer ".

7 . As the Court stressed in its judgment in Defrenne No 3,

"In contrast to the provisions of Articles 117 and 118, which are essentially in the nature of a programme, Article 119, which is limited to the question of pay discrimination between men and women workers, constitutes a special rule, whose application is linked to precise factors;

in these circumstances it is impossible to extend the scope of that article to elements of the employment relationship other than those expressly referred to ." ( 2 )

In his Opinion Mr Advocate General Capotorti also pointed out that whilst the working conditions referred to in Articles 117 and 118 certainly included pay, pay was "specifically covered" by Article 119 . Article 119 therefore had a specific scope . ( 3 )

8 . In its judgment in the Garland case the Court defined the concept of pay by reference to :

"any other 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 )

9 . Does the continued payment of wages during illness fall within that definition?

10 . There is already considerable case-law on retirement pensions . In its judgment in Defrenne No 1 the Court held that statutory pension schemes were excluded from the scope of Article 119 after pointing out that the financial contribution to the scheme from workers, employers and possibly the public authorities was

"determined less by the employment relationship between the employer and the worker than by considerations of social policy ". ( 5 )

11 . Similarly, in its judgment in Newstead the Court held that a contribution to an occupational retirement pension scheme which is compulsory and is a substitute for the general statutory scheme must be considered to fall within the scope of Article 118 of the Treaty but not of Article 119 . ( 6 )

12 . On the other hand, in its judgment in Bilka the Court held that occupational pensions established by an agreement between the employer and the Betriebsrat ( works council ) fell within the definition of "pay ". ( 7 )

13 . Furthermore, in its judgment in Worringham and Humphreys the Court also held that proportions of gross salary directly deducted by the employer and paid on behalf of the employee to a pension fund set up as the result of collective bargaining were also pay . ( 8 )

14 . Finally, in its judgment in Liefting the Court held that statutory social security contributions payable by the employee which directly determined the calculation of other advantages linked to salary, such as redundancy payments, unemployment benefits, family allowances and credit facilities, were pay . ( 9 )

15 . In the present case, it is the employer who continues to pay wages in the case of illness . It is true that a proportion of those wages is reimbursed by the sickness insurance funds but that provision is of restricted application since it only covers undertakings employing fewer than 20 persons . Furthermore, the conditions for paying those wages have their genesis in the employment relationship since only workers who have completed a certain weekly or monthly period of work may benefit from the system . Furthermore, the sum of the benefits is directly related to the wages normally paid . It can therefore be said, as the converse of the formula employed in Defrenne No 1, that the employer contributes in a measure determined more by the employment relationship than by considerations of social policy . All the considerations set out above, to my mind, lead to the conclusion that the benefit in question is to be regarded as "pay" within the meaning of Article 119 of the EEC Treaty .

16 . Let us now turn to the question whether the legislative provision at issue is discriminatory or not .

17 . I would point out once more that the question referred to the Court concerns both Article 119 of the Treaty and Directive 75/117 . The Court has already stated that that directive

"is principally designed to facilitate the practical application of the principle of equal pay laid down in Article 119 and in no way alters its content or scope as defined in that article ". ( 10 )

18 . I shall therefore limit by observations to Article 119 since it seems to me that the proceedings pending before the national court may be resolved by an interpretation of that article alone .

19 . As I have already mentioned, the Court has already considered the difficulties raised by part-time employment . In its judgment in Jenkins the Court stated that

"the fact that part-time work is paid at an hourly rate lower than pay for full-time work does not amount per se to discrimination prohibited by Article 119 provided that the hourly rates are applied to workers belonging to either category without distinction based on sex ". ( 11 )

The Court added that such a difference in pay was not contrary to the principle of equal pay provided that it was "attributable to factors which are objectively justified and are in no way related to any discrimination based on sex" but that "by contrast, if it is established that a considerably smaller percentage of women than of men perform the minimum number of weekly working hours required in order to be able to claim the full-time hourly rate of pay" the inequality in pay will be contrary to Article 119 where it "cannot be explained by factors other than discrimination based on sex ". ( 12 ) The Court left the task of assessing that latter point to the national court .

20 . In its judgment in Bilka the Court maintained the same line of reasoning, holding that

"If, therefore, it should be found that a much lower proportion of women than of men work full time, the exclusion of part-time workers from the occupational pension scheme 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 ". ( 13 )

21 . However, on this point the Court proceeded to reverse the burden of proof by ruling in the operative part of the judgment that

"Article 119 of the EEC Treaty is infringed by a department store company which excludes part-time employees from its occupational pension scheme, where that exclusion affects a far greater number of women than men, unless the undertaking shows that the exclusion is based on objectively justified factors unrelated to any discrimination on grounds of sex ". ( 14 )

In that case, too, the task of assessing whether the reasons given to justify the disputed measure were unrelated to any discrimination was left to the national court .

22 . In this respect, the case-law of the Court gives guidelines - I dare not say instructions - for the national court to assist it in reaching the most reasonable solution . The Court requires that the measures chosen correspond to a real need on the part of the undertaking, are appropriate with a view to achieving the objectives pursued and are necessary to that end . ( 15 )

23 . In the present case, it is undeniable that in the majority of the Member States of the Community the number of women engaged in part-time employment is most often far greater than the number of men . In round numbers the percentages for 1987 which were provided by the Commission in reply to the question asked by the Court are as follows :

Federal Republic of Germany : 89%

France : 88%

Spain : 86%

United Kingdom : 85%

Netherlands : 83%

Italy : 62%

Denmark : 54%

24 . The Danish Government, which has intervened in the proceedings, has indeed pointed out the specific nature of the situation in Denmark . It also stressed the disadvantages which would result from a legislative provision being declared contrary to the Treaty on the sole ground that in practice the provision affected female employees more often than male employees : first, the situation might change from one year to the next and, secondly, it is inconceivable for the same measure to be incompatible with the Treaty in one Member State and compatible in another, or even both compatible and incompatible in the same State at the same time depending on the sectors involved .

25 . That observation leads me to a more general point . May the decisions in Jenkins and Bilka be transposed to the present case? The Commission and the plaintiff in the main proceedings take that for granted . I must confess to some hesitation on the point . The first of the two cases which gave rise to those judgments involved the wage policy of an undertaking and the other case a contractual pension scheme established by a group of undertakings . By contrast, the issue in this case is whether a legislative provision is in conformity with the principles of Community law . Consequently, the question is whether it is possible to raise, as against a provision which is not contractual but a State provision, a presumption of incompatibility like that in the Bilka case which may only be rebutted by evidence that the measures in question are justified for reasons which may be regarded as "objectively justified economic grounds ". 15

26 . A full transposition of that case-law in this field would lead to a provision of national law being declared compatible or incompatible with the Treaty once a certain number of conditions are met, solely on the basis of the reasons on which that provision is stated to be based . That was the full implication of the question asked by the Court of the German Government during the written procedure . In view of the legal certainty required, would there not be some danger in making the compatibility of a national law dependent solely on the reasons which led to its being adopted? The reply of the German Government also demonstrates the difficulties which may be encountered in ascertaining the reasons for a piece of reforming legislation, especially when it is introduced by Parliament . It seems to me unwise to decide the fate of a general rule on the basis of subjective considerations relating to the reasons, which may be more or less clear and more or less explicit, which led to its adoption .

27 . In Bilka the Commission suggested that a distinction be drawn between the discriminatory intention and the discriminatory effect of the measure; the Court should hold measures to be incompatible with the Treaty not simply when they were intentionally discriminatory but also when they had a discriminatory effect, even in the absence of any such intention . The Court did not give any express reply on the point but it seems that in paragraph 30 of the judgement, in which the Court held that there was no breach of Article 119

"if the undertaking is able to show that its pay practice may be explained by objectively justified factors unrelated to any discrimination on grounds of sex",

the Court impliedly rejected the Commission' s extensive arguments .

28 . Consequently, it does not seem to me that a measure is incompatible with the Treaty solely because it has a discriminatory effect, provided that it is based on objective factors and is not meant to be discriminatory .

29 . Moreover, would it be desirable for the Court to establish a presumption that national law is incompatible with the Treaty solely on the basis that one of its provisions affects far more women than men? Such a presumption is wholly justified when the practice of an undertaking or an agreement between employers is involved, that is to say rules of law of modest status in the hierarchy of legal rules and above all of very limited scope . In my view, the same is not true of a legislative provision . There is an essential difference between an employer, for whom wages policy is one of the most important areas for his undertaking, and a legislature, which is responsible for the common weal and which must take into account a large number of social, economic and political circumstances amongst which the respective numbers of men and women workers are just one factor . Consequently, although it may be assumed that an undertaking must have been aware that in some of its posts the numbers of men and women were unequal and it may therefore be presumed that one measure of its wages policy is incompatible with the Treaty, it is a different matter in the case of a national legislature which is required to take into account a far greater number of circumstances and which cannot be presumed to act in a discriminatory manner . Most of the aforementioned difficulties relating to legal uncertainty would be avoided if the Court refrained from reversing the burden of proof in this matter .

30 . What is more, at the hearing the Commission referred to its proposal for a Council Directive on the burden of proof in the area of equal pay and equal treatment for men and women ( 16 ). Article 3 of that proposal provides that "where persons ... establish at any state of proceedings before a court ... a presumption of discrimination, it shall be for the respondent to prove that there has been no contravention of the principle of equality ". Article 3(2 ) provides that : "A presumption of discrimination is established where a complainant shows a fact or a series of facts which would, if not rebutted, amount to direct or indirect indiscrimination ". It is not for me to interpret the provisions of that proposal for a directive; however, the manifestly unequal numbers of male and female employees affected by the measure at issue should evidently be counted as one of the facts establishing such a presumption . If the Commission has proposed the introduction of such a presumption to reverse the burden of proof by means of a directive, this must mean that at present there is no such mechanism in Community law . It seems to me, therefore, that the Court, by refining its case-law without departing in any way from it, could hold that a legislative provision which in practice affects a far greater number of women than men is compatible with Article 119 of the EEC Treaty unless it is proved that the measure was adopted on grounds related to discrimination based on sex, leaving it to the national court to rule on the latter point, taking into account the evidence from all sides, and to draw all the necessary inferences .

31 . In the present case, the first condition laid down by the Court' s case-law regarding the existence of a significant disproportion between male and female workers is obviously fulfilled in the case of the Federal Republic of Germany since 89% of part-time workers in that country are women .

32 . As regards the second point, according to the Court' s case-law, it is for the national court to determine whether or not the disputed provision was based on objectives related to discrimination on grounds of sex .

33 . By virtue of the direct effect which the Court has held Article 119 of the Treaty to have once discrimination may be identified solely with the aid of criteria of equal work and equal pay without national or Community measures being required to define them with great precision in order to permit of their application, ( 17 ) the national court is entitled to interpret domestic law in a manner allowing it to be applied in conformity with the requirements of Community law and to the extent that this is not possible to hold such domestic law inapplicable . ( 18 )

34 . In the related field of equal treatment between men and women in matters of social security, the Court adopted the same approach . It declared :

"If a national court, which has sole jurisdiction to assess the facts and interpret the national legislation, finds that supplements ... serve to ensure an adequate minimum subsistence income ... and are necessary for that purpose, the fact that the supplements are paid to a significantly higher number of married men than married women is not sufficient to support the conclusion that the grant of such supplements is contrary to the directive ". ( 19 )

35 . I would suggest that the Court should answer the question along the same lines .

36 . I therefore propose that the Court should rule as follows :

A legislative provision which excludes part-time workers from the continued payment of their wages in the event of illness thereby affecting a much greater number of women than men is compatible with Article 119 of the EEC Treaty unless it is proved before the national court that the provision was based on objectives related to discrimination on grounds of sex .

(*) Original language : French .

( 1 ) On the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women ( Official Journal L 45, 19.2.1975, p . 19 ).

( 2 ) Judgment of 15 June 1978 in Case 149/77 Defrenne v Sabena (( 1978 )) ECR 1365, paragraphs 19 and 20 .

( 3 ) Case 149/77 (( 1978 )) ECR 1381 .

( 4 ) Judgment of 9 February 1982 in Case 12/81 Garland v British Rail Engineering, (( 1982 )) ECR 359, paragraph 5 .

( 5 ) Judgment of 25 May 1971 in Case 80/70 Defrenne v Belgium (( 1971 )) ECR 445, paragraph 8 .

( 6 ) Judgment of 3 December 1987 in Case 192/85 Newstead v Department of Transport and Her Majesty' s Treasury (( 1987 )) ECR 4753, paragraph 15 .

( 7 ) Judgment of 13 May 1986 in Case 170/84 Bilka-Kaufhaus GmbH v Weber von Hartz (( 1986 )) ECR 1607, paragraphs 20 to 22 .

( 8 ) Judgment of 11 March 1981 in Case 69/80 Worringham and Humphreys v Lloyds Bank (( 1982 )) ECR 767, paragraph 15 .

( 9 ) Judgment of 18 September 1984 in Case 23/83 Liefting and Others v Directie van het Academisch Ziekenhuis (( 1984 )) ECR 3225, paragraphs 12 and 13 .

( 10 ) Case 192/85, supra, paragraph 20; see also the judgment of 31 March 1981 in Case 96/80 Jenkins v Kingsgate (( 1981 )) ECR 911, paragraph 22 .

( 11 ) Case 96/80, supra, at paragraph 10, emphasis added .

( 12 ) Ibid, paragraphs 11 and 13 .

( 13 ) Case 170/84, supra, paragraph 29 .

( 14 ) Ibid, operative part of the judgment, emphasis added .

( 15 ) Ibid, paragraph 36 .

( 16)16 Official Journal C 176, 5.7.1988, p . 5 .

( 17 ) Case 96/80, paragraph 17; judgment of 8 April 1976 in Case 43/75 Defrenne v Sabena ( No 2 ) (( 1976 )) ECR 455, paragraph 18; judgment of 27 March 1980 in Case 129/79, Macarthys and Smith (( 1980 )) ECR 1275, paragraph 10; Case 69/80 Worringham and Humphreys v Lloyds Bank, supra, paragraph 23 .

( 18 ) Judgment of 4 February 1988 in Case 157/86 Murphy and Others v Bord Telecom Eireann (( 1988 )) ECR 673, paragraph 11 .

( 19 ) Judgment of 11 June 1987 in Case 30/85 Teuling v Bedrijfsvereniging voor de Chemische Industrie (( 1987 )) ECR 2497, paragraph 18 .

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Judgment C-171/88

Translation