CELEX: C1995/174/01
Language: en
Date: 1995-07-08 00:00:00
Title: JUDGMENT OF THE COURT of 31 May 1995 in Case C-400/93 (reference for a preliminary ruling from the Faglige Voldgiftsret (Denmark)): Specialarbejderforbundet i Danmark v. Dansk Industri (Equal pay for men and women)

8 . 7 . 95            EN                 Official Journal of the European Communities                                   No C 174/ 1
                                                                  I
                                                            (Information)
                                             COURT OF JUSTICE
                                                         COURT OF JUSTICE
               JUDGMENT OF THE COURT                                  2 . The principle of equal pay set out in Article 119 of the
                       of 31 May 1995                                     Treaty and Article 1 of Directive 75/117/EEC means
                                                                          that the mere finding that in a piece-work pay scheme
in Case C-400/93 ( reference for a preliminary ruling from                the average pay of a group of workers consisting
the Faglige Voldgiftsret ( Denmark )): Specialarbejderfor­                predominantly of men carrying out another type of
           bundet i Danmark v. Dansk Industri (')
                                                                          work to which equal value is attributed does not suffice
               (Equal pay for men and women)                              to establish that there is discrimination with regard to
                         (9 SIC 174/01 )                                  pay. However, where in a piece-work pay scheme in
                                                                          which individual pay consists of a variable element
                                                                          depending on each worker 's output and a fixed element
                (Language of the case: Danish)                            differing according to the group of workers concerned it
                                                                          is not possible to identify the factors which determined
                                                                          the rates or units of measurement used to calculate the
(Provisional translation; the definitive translation will be              variable element in the pay, the employer may have to
          published in the European Court Reports)                        bear the burden ofproving that the differences found are
                                                                          not due to sex discrimination .
In Case C-400/93 : reference to the Court under Article 177
of the EC Treaty by the Faglige Voldgiftsret ( Denmark ) for a
preliminary ruling in the proceedings pending before that
court between Specialarbejderforbundet i Danmark and                  3 . For the purposes of the comparison to be made between
Dansk Industri, formerly Industriens Arbejdsgivere, acting
                                                                          the average pay of two groups of workers paid by the
for Royal Copenhagen A/S — on the interpretation of                       piece, the national court must satisfy itself that the two
Article 119 of the EC Treaty and Council Directive
                                                                          groups each encompass all the workers who , taking
75/ 1 17/EEC of 10 February 1975 on the approximation of                  account ofa set offactors such as the nature of the work ,
the laws of the Member States relating to the application of
                                                                          the training requirements and the working conditions,
the principle of equal pay for men and women ( 2 ), the Court,            can be considered to be in a comparable situation and
composed of: G. C. Rodriguez Iglesias , President, F. A.                  that they cover a relatively large number of workers
Schockweiler ( Rapporteur ) and C. Gulmann ( Presidents of
                                                                          ensuring that the differences are not due to purely
Chambers ), G. F. Mancini , C. N. Kakouris , J. C. Moitinho
                                                                          fortuitous or short-term factors or to differences in the
de Almeida , J. L. Murray, D. A. O. Edward , J. - P. Puissochet,          individual output of the workers concerned.
G. Hirsch and L. Sevon , Judges ; Advocate-General : P. Leger;
Registrar : H. von Holstein , Deputy Registrar, gave a
judgment on 31 May 1995 , the operative part of which is as
follows :
                                                                      4 . When ascertaining whether the principle of equal pay
 1 . Article 119 of the EC Treaty and Council Directive                   has been observed, it is for the national court to decide
      75/1 17/EEC of 10 February 1975 on the approximation                whether, in the light of circumstances such as, first, the
     of the laws of the Member States relating to the                     fact that the work done by one of the groups of workers
     application of the principle of equal pay for men and                in question involves machinery and requires in
     women apply to piece-work pay schemes in which pay                   particular muscular strength whereas that done by the
     depends entirely or in large measure on the individual               other group is manual work requiring in particular
     output of each worker.                                               dexterity and, secondly, the fact that there are
 ---pagebreak--- No C 174/2               EN                    Official Journal of the European Communities                                           8 . 7 . 95
      differences between the work of the two groups with                        or can a claim for breach of official duty arise only from
      regard to paid breaks, freedom to organize one 's own                      paragraph 839 of the German Civil Code , in
      work and work-related inconveniences, the two types of                     conjunction with Article 34 of the Grundgesetz ( Basic
      work are of equal value or whether those circumstances                     Law )?
      may be considered to be objective factors unrelated to
      any discrimination on grounds of sex which are such as              (') OJ No L 6 , 10 . 1 . 1979 , p . 24 .
      to justify any pay differentials.
5 . The principle of equal pay for men and women also
      applies where the elements of the pay are determined by
      collective bargaining or by negotiation at local level.
      However, the national court may take that fact into                 Reference for a preliminary ruling from the Tribunal
      account in its assessment of whether differences                    Tributario de Segunda Instancia by an order of
      beteween the average pay of two groups of workers are               29 November 1994 in the case of Pascoal &c Filhos SA
      due to objective factors unrelated to any discrimination                                  against Fazenda Publica
      on grounds of sex.                                                                              ( Case C-97/95 )
                                                                                                        ( 95 /C 174/03 )
(') OJ No C 287, 23 . 10 . 1993 , p . 7 .
( 2 ) OJ No L 45 , 19 . 2 . 1975 , p . 19 .
                                                                          Reference has been made to the Court of Justice of the
                                                                          European Communities by an order of the Tribunal
                                                                          Tributario de Segunda Instancia ( Customs Court of Second
                                                                          Instance ), Lisbon, of 29 November 1995 , which was
                                                                          received at the Court Registry on 27 March 19 95 , for a
                                                                          preliminary ruling in the case of Pascoal & Filhos SA and
Reference for a preliminary ruling from the Hanseatisches                 Fazenda Publica on the following questions :
Oberlandesgericht in Bremen by order of that court of
14 February 1995 in the case of Bruna-Alessandra Ziichner                 ( a ) Does the responsibility of the exporter, referred to in
         v. Handelskrankenkasse ( Ersatzkasse ) Bremen                            Article 10 ( 1 ) of Annex II to Council Decision
                            ( Case C-77/95 )                                      86/283/EEC (') of 30 June 1986 , extend to customs
                              ( 95/C 174/02 )
                                                                                  duties resulting from the cancellation of movement
                                                                                  certificates  EUR.l        issued  on  the basis    of false
                                                                                  information as to the origin of the goods ?
Reference has been made to the Court of Justice of the
European Communities by an order of the Hanseatisches                     ( b ) ' What is the meaning and scope of the modal adverb
Oberlandesgericht in Bremen — Erster Zivilsenat ( Higher                          ' also ' used in the second subparagraph of
Regional Court, Bremen — First Civil Senate ) of                                  Article 201 ( 3 ) of the Community Customs Code ( 2 ), in
14 February 1995 , which was received at the Court Registry                       particular where the national customs law provides
on 15 March 1995 , for a preliminary ruling in the case of                        that responsibility for payment of the duties due in
Bruna-Alessandra           Ziichner      v.   Handelskrankenkasse
                                                                                  respect of the goods involved in the infringement
( Ersatzkasse ) Bremen on the following questions :                               attaches exclusively to the person who committed the
                                                                                  customs infringement ?
1 . Does the plaintiff, as the wife of the insured person who
      is in need of care, belong to the working population                (c ) May the rule in the judgment of the Court of Justice of
      within the meaning of Article 2 of Council Directive                        the European Communities of 7 December 1993 in
      79/7/EEC of 19 December 1978 f 1 )?                                         Case C-12/92 (') E. Huygen, published at pages 5 and 6
                                                                                  of Proceedings of the Court of Justice No 35/93 ,
2 . Although paragraph 37 ( 3 ) of the SGB, Book V, is                            although relating to the Free Trade Agreement between
      formulated in neutral terms with regard to sex, does it                     the EEC and Austria, apply to the circumstances of this
      discriminate, within the meaning of the Directive,                          case, which concerns the interpretation and application
      against the plaintiff as a woman ?                                          of Council Decision 86/283/EEC ?
3 . Does the plaintiff, who is not insured by the defendant,              ( d ) What is the meaning, purport and scope of the results of
      have direct entitlement, or does her husband , as the                       the verification referred to by Article 25 ( 3 ) of Annex II
                                                                                  to Decision 86/283/EEC ?
      insured person, alone have direct entitlement ?
                                                                          ( e ) May a procedure for post-clearance recovery in the
4 . Is the defendant itself liable , as an organ of the State
                                                                                  Member State of importation be commenced and
      ( substitute sickness insurance fund )? If not, who is liable
      in its stead ?
                                                                                  completed before the results of the verification are
                                                                                  forwarded by the customs authorities in the exporting
                                                                                  country to the customs authorities in the importing
5 . Does a claim for breach of official duty, irrespective of                     country and without the importer being aware of the
      fault, exist under the law of the European Communities,                     results of the verification ?