WRITTEN QUESTION E-1142/96 by Freddy Blak (PSE) to the Commission (13 May 1996)

Subject: Equal pay

The Danish trade union SID has lost a major arbitration case on equal pay. The Royal Copenhagen porcelain factory has a piece-work system whereby female painters earn on average DKK 22 less then their male colleagues. The European Court of Justice was asked for its opinion during the trial but did not give a clear answer.

The principles involved are very important. What then is the Commission's reaction to the court's decision?

Answer given by Mr Flynn on behalf of the Commission (13 June 1996)

In the case mentioned by the Honourable Member ((Case C-400/93, Royal Copenhagen, 31.5.1995 ECR 1995 I, p. 1275 )), the Court of Justice was requested for a preliminary ruling on the interpretation of Article 119 of the EC Treaty and Council Directive ((OJ L 45, 19.2.1975 )) 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. In its order the national court requested the ECJ to rule notably on the application of these provisions to piecework pay schemes, in particular when pay consists of a fixed part corresponding to a flat-rate paid by the hour and a variable part depending on the number of items manufactured. It also raised the question as to the choice of groups of workers to be compared.

At the origin of this issue were three groups of workers, one of which mainly consisted of men and the two others mainly of women. The average hourly pay of these three groups was 103.93 DKR, 91 DKR and 116.20 DKR respectively. However, since pay was calculated as a function of a fixed component and a supplement per manufactured item, the gaps between the wages of individual workers within each group were very great. Moreover, the remuneration of the best-paid worker in group 2 was higher than that of the best-paid worker in group 1.

In its judgment the Court confirmed its established case law. Firstly, it confirmed its judgment in Barber ((Case C-262/88, 17.5.1990, ECR 19990 I, p. 1889 )), in the sense that Article 119 of the EC Treaty prohibits any discrimination with regard to pay as betwen men and women, whatever the system which gives rise to such inequality (point 13).

Secondly it also confirmed its case law as regards the burden of proof. Hence point 24 recalls Enderby ((Case C-127/92, 27.10.1993, ECR 1993, I, p. 5535 )) and Danfoss ((Case C-109/88, 17.10.1989, ECR 1989, p. 3199 )), emphasising that when an undertaking applies a system of pay which is wholly lacking in transparency, it is for the employer to prove that his practice in the matter of wages is not discriminatory.

Thirdly, it referred to the notion of indirect discrimination, as explicated notably in Bilka ((Case C-170/84, 13.5.1996, ECR 1996, p. 1607 )). It confirmed that a pay differential between two groups of workers does not constitute a discrimination contrary to Article 119 of the EC Treaty and the Directive if it may be explained by objectively justified factors unrelated to any discrimination on the grounds of sex (point 41).

Consequently the Commission considers that this judgment is fully compatible with the Court of Justice's case law in this domain.