CELEX: 62002CJ0019
Language: en
Date: 2004-12-09
Title: Judgment of the Court (First Chamber) of 9 December 2004.#Viktor Hlozek v Roche Austria Gesellschaft mbH.#Reference for a preliminary ruling: Oberster Gerichtshof - Austria.#Social policy - Male and female workers - Equal pay - Pay - Concept - Bridging allowance ("Überbrückungsgeld') provided for by a works agreement - Social plan drawn up as part of an operation to restructure an undertaking - Benefit granted to workers having reached a certain age at the time of their dismissal - Benefit granted from a different age according to the sex of the dismissed workers - Account taken of national statutory retirement age, different according to sex.#Case C-19/02.

Case C-19/02
      Viktor Hlozek
      v
      Roche Austria Gesellschaft mbH
      (Reference for a preliminary ruling from the Oberster Gerichtshof (Austria))
      (Social policy – Men and women – Equal pay – Pay – Concept – Bridging allowance (‘Überbrückungsgeld’) provided for by a works agreement – Social plan drawn up as part of an operation to restructure an undertaking – Benefit granted to workers having reached a certain age at the time of their dismissal – Benefit granted from a different age according to the sex of the dismissed workers – Account taken of national statutory retirement age, different according to sex)
      Summary of the Judgment
      Social policy – Men and women – Equal pay – Pay – Concept – Bridging allowance provided for by a social plan and paid to dismissed
            workers – Included – Age at which entitlement to the allowance arises – Age different according to sex – Permitted
      (Art. 141 EC; Council Directive 75/117, Art. 1)
      A bridging allowance originating from a social plan which was the result of an agreement between management and labour as
         part of an operation to restructure an undertaking, owed by that undertaking to workers who have reached a certain age at
         the time of their dismissal, constitutes a benefit granted in connection with the employment relationship and therefore falls
         under the concept of ‘pay’ within the meaning of Article 141 EC and Article 1 of Directive 75/117 on the approximation of
         the laws of the Member States relating to the application of the principle of equal pay for men and women.
      
      Those provisions do not preclude the application of a social plan providing for a difference in the treatment of male and
         female workers in terms of the age at which they are entitled to a bridging allowance, since, under the national statutory
         scheme governing early retirement pensions, they are in different situations with regard to the factors relevant to the grant
         of that allowance.
      
      (see paras 38-39, 48, 51, operative part)

      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
            
            JUDGMENT OF THE COURT (First Chamber)9 December 2004(1)
         
         
            
         
               (Social policy  –  Male and female workers  –  Equal pay  –  Pay  –  Concept  –  Bridging allowance (‘Überbrückungsgeld’) provided for by a works agreement  –  Social plan drawn up as part of an operation to restructure an undertaking  –  Benefit granted to workers having reached a certain age at the time of their dismissal  –  Benefit granted from a different age according to the sex of the dismissed workers  –  Account taken of national statutory retirement age, different according to sex)
               
             In Case C-19/02,REFERENCE for a preliminary ruling under Article 234 EC, from the Oberster Gerichtshof (Austria), made by decision of 20 December 2001, received at the Court on 29 January 2002, in the proceedings
            
            
            Viktor Hlozek
            
            v
            
            Roche Austria Gesellschaft mbH,
            
            
            
            THE COURT (First Chamber),,
            
             composed of P. Jann, President of the Chamber, A. Rosas (Rapporteur), R. Silva de Lapuerta, K. Lenaerts and S. von Bahr, Judges,
            
             Advocate General:  J. Kokott,Registrar: M.-F. Contet, Principal Administrator,
             having regard to the written procedure and further to the hearing on 12 February 2004,after considering the observations submitted on behalf of:
            
            –
             Mr Hlozek, by G. Teicht and G. Jöchl, Rechtsanwälte,
            
            –
             Roche Austria Gesellschaft mbH, by R. Schuster, Rechtsanwalt,
            
            –
             the Republic of Austria, by C. Pesendorfer and G. Hesse, acting as Agents,
            
            –
             the Commission of the European Communities, by J. Sack and N. Yerrel, acting as Agents,
            
            
            
            after hearing the Opinion of the Advocate General at the sitting on 1 April 2004,
         gives the following
         
         
         Judgment
         1
            
          This reference for a preliminary ruling concerns the interpretation of Article 141 EC 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 (OJ 1975 L 45, p. 19), and the interpretation of 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) and Council Directive 86/378/EEC of 24 July 1986 on the implementation
         of the principle of equal treatment for men and women in occupational social security schemes (OJ 1986 L 225, p. 40), as amended
         by Council Directive 96/97/EC of 20 December 1996 (OJ 1997 L 46, p. 20).
         
         
         
         2
            
          The reference was made in the course of proceedings between Mr Hlozek and Roche Austria Gesellschaft mbH (‘Roche’) concerning
         the latter’s refusal to grant him a bridging allowance which, according to the agreement concluded as part of an operation
         to restructure the undertaking, was to be paid to workers having reached a certain age at the time of their dismissal. 
         
         
            
               Legal framework
            Community rules 
         
         3
            
          Article 141 EC lays down the principle of equal pay for male and female workers for equal work or work of equal value.
         
         
         
         4
            
          Since 1 May 1999, the date on which the Treaty of Amsterdam entered into force, Articles 136 EC to 143 EC have replaced Articles
         117 to 120 of the EC Treaty. Article 141(1) and the first subparagraph of Article 141(2) EC are essentially identical to the
         first and second paragraphs of Article 119 of the EC Treaty. 
         
         
         
         5
            
          Article 1 of Directive 75/117 reads as follows: 
         ‘The principle of equal pay for men and women outlined in Article 119 of the Treaty, hereinafter called “principle of equal
         pay”, means, for the same work or for work to which equal value is attributed, the elimination of all discrimination on grounds
         of sex with regard to all aspects and conditions of remuneration.
         …’
         
         
         
         6
            
          Directive 76/207 is intended to implement in the Member States the principle of equal treatment for men and women as regards
         access to employment, including promotion, and to vocational training, working conditions, including the conditions governing
         dismissal, and, in the conditions laid down in Article 1(2), social security. 
         
         
         
         7
            
          Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men
         and women in matters of social security (OJ 1979 L 6, p. 24) was adopted pursuant to Article 1(2) of Directive 76/207. Article
         3(1)(a) thereof provides that that directive is to apply to statutory schemes which provide protection against inter alia
         old age and unemployment.
         
         
         
         8
            
          Directive 86/378 provides for the implementation of the principle of equal treatment for men and women in occupational social
         security schemes which provide protection against the risks specified in Article 3(1) of Directive 79/7 as well as those which
         provide employees with any other consideration, in cash or in kind within the meaning of the Treaty.
         
         
         
         9
            
          Article 2 of Directive 86/378, as amended by Directive 96/97, provides that the term ‘occupational social security schemes’
         means schemes not governed by Directive 79/7/EEC whose purpose is to provide workers, whether employees or self-employed,
         in an undertaking or group of undertakings, area of economic activity or occupational sector or group of such sectors with
         benefits intended to supplement the benefits provided by statutory social security schemes or to replace them, whether membership
         of such schemes is compulsory or optional. 
         
         National rules
         
         10
            
          According to the simplified account contained in the order for reference, it is necessary to take into consideration inter
         alia the following national provisions. 
         
         
         
         11
            
          Paragraph 253 of the Allgemeines Sozialversicherungsgesetz (General law on social security, BGBl. No 189/1955, in the version
         thereof published in BGBl. No 33/2001) (‘ASVG’) confers entitlement to a retirement pension to men at the age of 65 and women
         at the age of 60. At the time of the facts giving rise to the main proceedings, Paragraphs 253a, 253b and 253c of the ASVG
         also conferred entitlement to early retirement, particularly in the event of unemployment, to men aged 60 and over and to
         women aged 55 and over. Those lower age limits have, in the meantime, been raised and were, at the time the reference was
         made, set at 61.5 years for men and 56.5 years for women. 
         
         
         
         12
            
          Paragraph 2(1) of the Bundesgesetz über die Gleichbehandlung von Frau und Mann im Arbeitsleben (Law on equal treatment of
         men and women at work, BGBl. No 108/1979, in the version thereof published in BGBl. No 833/1992) (‘the Gleichbehandlungsgesetz’)
         prohibits all discrimination, whether direct or indirect, based on sex. That prohibition applies, inter alia, to discrimination
         as regards the establishment of the employment relationship (line 1), as regards remuneration (line 2), as regards the grant
         of social benefits other than remuneration (line 3), as regards career path, particularly promotions (line 5) and as regards
         the termination of the employment relationship (line 7). 
         
         
         
         13
            
          Under Paragraph 97(1)(4) of the Arbeitsverfassungsgesetz (Law on labour relations, BGBl. No 22/1974, in the version thereof
         published in BGBl. No 833/1992 and in BGBl. No 502/1993) (‘ArbVG’), the elected body of the workforce in an undertaking may
         compel the owner of that undertaking to conclude a works agreement on measures to prevent, remove or alleviate the effects
         of a change in the undertaking within the meaning of Paragraph 109(1)(1) to (6) of the ArbVG, if it seriously affects all
         workers or substantial sections of the workforce. That works agreement, known as ‘the social plan’ (‘Sozialplan’), can include
         all the rules intended to compensate for the adverse effects of the change in the undertaking, such as enhanced settlements
         in the event of dismissal following operational cutbacks or support measures for dismissed workers, as well as ‘bridging allowances’
         (‘Überbrückungsgelder’). According to the national court, the law does not prescribe any specific content for such a social
         plan. 
         
         
         
         14
            
          Under Paragraph 31 of the ArbVG, a works agreement is, within its scope, directly binding; it thus has legislative effect
         in relation to the workers. 
         
         The social plan of 26 February 1998
         
         15
            
          According to the order for reference, the social plan of 26 February 1998, which is at issue in the main proceedings, is a
         works agreement within the meaning of the relevant provisions of the ArbVG. 
         
         
         
         16
            
          Point 7 of that social plan concerns the voluntary settlement for workers who, at the time of termination of their employment
         relationship with the company, were men under 55 years of age or women under 50 years of age. The amount of that settlement
         is to be calculated according to the seniority of the worker in the undertaking. 
         
         
         
         17
            
          Point 8 of that social plan reads as follows:
         ‘8.     Bridging allowance (“Überbrückungszahlung”)
          8.1.   Scope of application
          Employees shall be entitled to the payment of a bridging allowance if, upon termination of the employment relationship, they
         have reached the age of 55 (men) or 50 (women) and are not yet entitled to a pension under the ASVG.
          8.2     The bridging allowance shall commence in the month following termination of the employment relationship and end at the time
         when a pension under the ASVG can be claimed, but no later than 5 years after the termination of the employment relationship.
          8.3     The amount of the bridging allowance shall be 75% (gross) of the final monthly salary and shall be paid 14 times a year. During
         the bridging period, the worker shall be released from his duties.
                    In addition, … a voluntary settlement [shall be granted].
                    This shall be determined in accordance with the duration of the bridging period:
                    up to two years: 1 month’s salary 
                    two to four years: 2 months’ salary
                    four years or more: 3 months’ salary.
          The voluntary settlement shall be paid at the same time as the statutory settlement.’
         
         
         
         18
            
          As regards rights under the undertaking’s occupational pension scheme, a distinction is also drawn according to whether the
         workers come under point 7 or point 8 of the social plan. According to point 12 thereof, workers who, at the time of their
         departure from the undertaking, do not meet the conditions for receiving the bridging allowance referred to in point 8 of
         the social plan, are to be guaranteed settlement of their pension rights at their actuarial value. However, workers coming
         under point 8 of the social plan are guaranteed entitlement to the retirement pension under the occupational scheme, the respective
         benefits being paid to them as from the time they receive an ASVG pension. Point 12.2 of the social plan stipulates that the
         bridging period referred to in point 8 is to be credited in full as a period of service.
         
         
         
         19
            
          In the order for reference, the Oberster Gerichtshof (Supreme Court) provides information on the practical implementation
         of point 8 of the social plan. When a worker was to be dismissed and met the conditions laid down in point 8, a contract was
         concluded between the undertaking and that worker, following termination of the employment contract. The new contract was
         concluded for a fixed period not exceeding five years or until the worker in question was entitled to receive a statutory
         ASVG pension. During that period, the worker in question received the bridging allowance, was irrevocably released from his
         duties and could engage in other remunerated activity. 
         
         
         
         20
            
          The possibility of engaging in other remunerated activity whilst receiving the bridging allowance followed directly from point
         4 of the social plan, according to which ‘… during the time they are released from their duties, workers shall be permitted
         to be in other employment, whilst preserving the rights conferred on them by the present social plan’. 
         
         The main proceedings and the questions referred for a preliminary ruling
         
         21
            
          With effect from 1 July 1998, Roche merged with the company for which Mr Hlozek had worked since 1 January 1982. With a view
         to that merger and in order to alleviate the adverse effects for the workers resulting from the restructuring measures planned
         as part of that merger, the employer and the works council concluded the social plan of 26 February 1998. 
         
         
         
         22
            
          Mr Hlozek was dismissed on 30 June 1999 as part of the undertaking’s restructuring, which entailed the closure of the factory
         which he managed. Since he was 54 years old at the time when his employment relationship with Roche ended, Mr Hlozek came
         under point 7 and not point 8 of the social plan. He accepted the voluntary settlement which was paid to him pursuant to point
         7 of the social plan. Given his years of service in the undertaking, the gross amount of that settlement was fixed at ATS
         1 845 000, or ATS 1 274 113.75 net. At a hearing held on 7 December 1999, Mr Hlozek stated that he had found other employment
         with pay comparable to what he had received earlier. 
         
         
         
         23
            
          If Mr Hlozek had been a female worker, point 8 of the social plan would have applied to him. In that case, he would have received
         a voluntary settlement for dismissal in an amount lower than the compensation he received. However, he would have benefited
         from the provisions relating to the granting of bridging allowance. 
         
         
         
         24
            
          Taking the view that he had been discriminated against on the basis of sex, Mr Hlozek brought an action before the Arbeits-
         und Sozialgericht (Labour and Social Court) Wien (Austria) for a declaration that he has an entitlement to a bridging allowance
         from Roche under the social plan of 26 February 1998 until such time as he receives his ASVG pension. In the alternative he
         sought a declaration that he is entitled to be paid the bridging allowance for the five years following the date of termination
         of his employment relationship with Roche or, in the further alternative, for the period during which he was unemployed.
         
         
         
         25
            
          In support of his claims, Mr Hlozek maintains essentially that the scheme relating to the bridging allowance, as laid down
         in point 8 of the social plan of 26 February 1998, is unlawful and void under both national law and Community law in that
         it provides for a different age for men (55) and for women (50). He submits that the provision relating to the lower age should
         also apply to men and that, since he was 54 at the time of his dismissal, he is entitled to a bridging allowance.
         
         
         
         26
            
          By judgment of 17 October 2000, the Arbeits- und Sozialgericht Wien upheld Mr Hlozek’s claim and held that he was entitled
         to a bridging allowance from Roche until such time as he received his ASVG pension, but only for a maximum period of five
         years as from 30 June 1999, the date on which his employment relationship ended. That court considered that, having regard
         to the case-law of the Court of Justice, in particular Case C-262/88 Barber [1990] ECR I-1889, the scheme in question had to be regarded as contrary to the principle of equal treatment laid down in
         Article 141 EC in that it fixed different ages for men and women for the granting of the bridging allowance. The national
         court found that, since Article 141 EC is binding and directly applicable, the different age conditions are void and the bridging
         allowance must be available to men and women who have reached the age of 50 when their employment relationship ends and who
         are not yet entitled to an ASVG pension. 
         
         
         
         27
            
          After that judgment was upheld on appeal to the Oberlandesgericht (Higher Regional Court) Wien (Austria), Roche applied for
         review on a point of law (‘Revision’) to the Oberster Gerichtshof. It contends that the bridging allowance in question does
         not fall to be assessed in the light of Article 141 EC and that there is no discrimination. It maintains essentially that
         it must be ascertained whether the condition for entitlement to the bridging allowance is discriminatory and that, in accordance
         with Case 19/81 Burton [1982] ECR 555, that question is to be assessed in the light not of Article 141 EC but of Directive 76/207. According to
         Roche, it is possible to adjust entitlement to a benefit of that nature on the basis of the different ages at which the statutory
         social security scheme starts paying out benefits. It adds that, in the bridging allowance, work performed and pay are dissociated
         and that, if the age at which the benefits are paid out were identical for men and women, that would give rise to discrimination
         against women.
         
         
         
         28
            
          In the order for reference, the Oberster Gerichtshof refers to statistics compiled by the Arbeitsmarktservice Wien for the
         years 1998 to 2000, relating to the number of unemployed persons in Austria according to sex and age. It states that, according
         to those statistics, the number of unemployed persons in age groups under 49 is fairly constant and equal for both sexes.
         However, in the 50 to 54 age group, the number of unemployed women is almost double the figure for the preceding age group.
         Moreover, in the same age group, the number of unemployed women is much higher than the number of unemployed men. By contrast,
         in the 55 to 59 age group, the number of unemployed men is higher than in the preceding age group. It is also higher than
         the number of unemployed women in the same age group. 
         
         
         
         29
            
          According to the national court, it is possible to explain that situation by the fact that the risk of unemployment increases
         with the approach of the statutory retirement age for each sex. Thus, for women, whose retirement age is lower than men’s,
         that risk reaches its peak earlier than it does for men. The national court notes that the defendant in the main proceedings
         stated that the social plan in question is intended specifically to take into account the higher risk of unemployment for
         workers who are dismissed during the five years preceding their retirement. 
         
         
         
         30
            
          The national court also states that the granting of the bridging allowance, as provided for by the social plan in dispute,
         does not establish an employment relationship within the meaning of Paragraph 2(1)(1) of the Gleichbehandlungsgesetz nor is
         it a promotion within the meaning of Paragraph 2(1)(3) of that same law. It points out that the workers concerned will not
         be required to perform any work.
         
         
         
         31
            
          Since the bridging allowance is not intended to supplement statutory pension insurance, nor is it a pension under an occupational
         social security scheme. There is no link to the duration of the employment relationship or to periods of membership in the
         scheme. According to the findings of the national court, simply as a result of their belonging to the workforce of the undertaking
         and by virtue of the employer’s obligation to establish social protection for them, essentially workers are protected against
         the risk of not finding new employment when their employment relationship ends at an age when it is known to be very difficult
         to find new employment. 
         
         
         
         32
            
          Having regard to the foregoing, the Oberster Gerichtshof decided to stay proceedings and to refer the following questions
         to the Court for a preliminary ruling:
         
         
                  ‘1.
                        (a) 
                     
               
                  Are Article 141 EC and Article 1 of Directive 75/117/EEC … to be interpreted, – where an employer who dismisses a large group
                           of employees as a result of a merger with another company is required, on account of its social obligation towards the entire
                           workforce, to agree with the works council a social plan, which is binding in relation to the employees, in order to alleviate
                           the effects of dismissal, in particular the risk of age-related unemployment, – as precluding a social plan under which all
                           female employees aged 50 and over at the time of their dismissal and all male employees aged 55 and over at the time of their
                           dismissal are entitled, irrespective of the period of employment, that is to say with no account being had to any “qualification
                           periods” and solely on the basis of age – or to the fact that the risk of long-term unemployment for men and women generally
                           differs according to their age – to a “bridging allowance” amounting to 75% of their final gross monthly salary for five years,
                           but at most until they become entitled to a statutory pension?
                        
                     
            
         
         
                  
                        
                     
               
                  
                     
            
         
         
                  
                        
                     
               
                  
                     
            
         
         
                  2.
                        (a) 
                     
               
                  Is the concept of “occupational social security schemes” within the meaning of Article 2(1) of Council Directive 86/378/EEC
                           … to be construed as including bridging allowances in the above sense?
                        
                     
            
         
         
                  
                        
                     
               
                  
                     
            
         
         
                  
                        
                     
               
                  
                     
            
         
         
                  3.
                        (a) 
                     
               
                  Is Council Directive 76/207/EEC of 9 February 1976 … to be interpreted to the effect that the bridging allowance described
                           above constitutes a condition governing dismissal within the meaning of Article 5 of this directive?
                        
                     
            
         
         
                  
                        
                     
               
                  
                     
            
         
         The questions referred for a preliminary ruling The first question
         
         33
            
          By its first question, which is divided into three parts (questions 1(a) to 1(c)), the national court asks essentially whether
         a bridging allowance such as that at issue in the main proceedings falls within the definition of ‘pay’ within the meaning
         of Article 141 EC and Article 1 of Directive 75/117 and, if so, whether those provisions preclude such an allowance from being
         granted, when account is taken of the general difference in the risk of long-term unemployment for men and women according
         to age or whether, conversely, the difference in risk thus construed may justify a difference in the treatment of male and
         female workers as regards the age from which they may be entitled to that allowance in the event of dismissal. 
         
          First part: classification of the benefit
         
         
         34
            
          As regards the first part of this question, all the parties which have submitted observations to the Court, with the exception
         of Roche, maintain that a benefit such as the bridging allowance at issue in the main proceedings constitutes ‘pay’ within
         the meaning of Article 141 EC and Article 1 of Directive 75/117. Roche takes the view that it is not necessary to classify
         the benefit as such, but rather to determine whether the conditions of eligibility for the bridging allowance are discriminatory.
         Referring to Burton, cited above, it states that the issue is governed by Directive 76/206. 
         
         
         
         35
            
          According to the settled case-law on Article 119 of the Treaty, the concept of ‘pay’, within the meaning of Article 141 EC
         and Article 1 of Directive 75/117, comprises 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. 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 the abovementioned provisions (see, in particular, Barber, cited above, paragraph 12; and Case C-167/97 Seymour-Smith and Perez [1999] ECR I-623, paragraphs 23 and 24).
         
         
         
         36
            
          Although it is true that in Burton, cited above, the Court held that Directive 76/207 applies to the conditions for granting a voluntary redundancy benefit
         paid by an employer to a worker wishing to leave his employment, the Commission has rightly pointed out that that case-law
         has not been cited in more recent judgments concerning benefits paid after termination of the employment relationship. 
         
         
         
         37
            
          As regards, in particular, the compensation granted by an employer to a worker on termination of his employment, the Court
         has already stated that such compensation is a form of deferred pay to which the worker is entitled by reason of his employment
         but which is paid to him on termination of the employment relationship with a view to enabling him to adjust to the new circumstances
         arising from such termination (see Barber, cited above, paragraph 13, and Case C‑33/89 Kowalska [1990] ECR I-2591, paragraph 10; and Seymour-Smith and Perez, cited above, paragraph 25).
         
         
         
         38
            
          In this case, it should be noted that the bridging allowance originates from the social plan of 26 February 1998, which was
         the result of an agreement between management and labour and that it must be paid by the undertaking by reason of the employment
         relationship which existed between it and certain workers dismissed as part of the restructuring operation dealt with in that
         plan. Point 8.3 thereof, under which the amount of the allowance is to be calculated on the basis of the final gross monthly
         salary, confirms that the bridging allowance constitutes a benefit granted in connection with the employment relationship
         with the workers concerned.
         
         
         
         39
            
          It is common ground that the abovementioned social plan was drawn up with a view to alleviating the social consequences of
         an operation to restructure the undertaking. Thus it reserves the benefit of the bridging allowance to workers who have reached
         an age close to the statutory retirement age at the time of their dismissal and provides that that allowance is to be paid
         to them for a maximum of five years, without their being required to perform any work. Consideration classified as pay specifically
         includes consideration paid by the employer under a contract of employment whose purpose is to ensure that workers receive
         income even where, in certain cases specified by the legislature, they are not performing any work provided for in their contracts
         of employment (see, to that effect, Case C-218/98 Abdoulaye and Others [1999] ECR I-5723, paragraph 13 and case-law cited). Moreover, the fact that such benefits are in the nature of pay cannot
         be called in question merely because they can also be regarded as reflecting considerations of social policy (Case C-173/91
         Commission v Belgium [1993] ECR I-673, paragraph 21; and Case C-7/93 Beune [1994] ECR I‑4471, paragraph 45).
         
         
         
         40
            
          Accordingly, the Court finds that the bridging allowance at issue in the main proceedings falls under the concept of ‘pay’
         within the meaning of Article 141 EC and Article 1 of Directive 75/117. 
         
          Second and third parts: existence of discrimination based on sex
         
         
         41
            
          It is appropriate to consider together the second and third parts of the first question referred for a preliminary ruling,
         aimed at elucidating whether, in the circumstances of the main proceedings, the difference in the treatment of male and female
         workers provided for in the social plan of 26 February 1998 as regards the age at which there is entitlement to a bridging
         allowance constitutes discrimination prohibited by Article 141 EC and Article 1 of Directive 75/117. 
         
         
         
         42
            
          The principle of equal pay for equal work for male and female workers, as laid down in Article 141 EC and specified further
         in Article 1 of Directive 75/117, precludes inter alia the application of provisions which establish any discrimination based
         on sex.
         
         
         
         43
            
          It must be borne in mind that the prohibition on discrimination between male and female workers contained in Article 141 EC,
         being mandatory, not only applies to the action of public authorities but extends also to all agreements which are intended
         to regulate paid labour collectively (see Case 43/75 Defrenne [1976] ECR 455, paragraph 39; Kowalska, cited above, paragraph 12; and Case C-284/02 Sass [2004] ECR I‑0000, paragraph 25).
         
         
         
         44
            
          However, in accordance with the Court’s case-law, the principle of equal pay, like the general principle of non-discrimination
         which it embodies in a specific form, presupposes that the men and women to whom it applies are in identical or comparable
         situations (see Case C‑132/92 Roberts [1993] ECR I-5579 (‘Birds Eye Walls’), paragraph 17; Case C-342/93 Gillespie and Others [1996] ECR I-475, paragraphs 16 to 18; Abdoulaye and Others, cited above, paragraph 16; and Case C-206/00 Mouflin [2001] ECR I-10201, paragraph 28).
         
         
         
         45
            
          In this case, it is common ground that the provisions of the social plan of 26 February 1998 provide for a difference in the
         treatment of workers based directly on their sex, because they fix the age giving entitlement to the bridging allowance at
         55 for men and 50 for women. However, according to Roche and the Republic of Austria, those provisions are not intended to
         give rise to discrimination against male workers nor do they have that effect. They maintain essentially that men who are
         dismissed when they are between 50 and 54 years old are not in a situation that is identical or comparable to that of women
         in the same age group. Consequently, it would be contrary to the principle of equal treatment to apply the same rule to objectively
         different situations. 
         
         
         
         46
            
          The Court notes that the social plan of 26 February 1998, adopted pursuant to the provisions of the ArbVG, was concluded between
         the undertaking and the elected body of the workforce with a view to alleviating the social consequences of the dismissal
         of a large number of employees as part of a merger with another company. In that context the social plan provided for a bridging
         allowance to be granted only to those workers who had reached a relatively advanced age at the time of their dismissal, thus
         taking account of the greater risk of long-term unemployment normally encountered by such workers.
         
         
         
         47
            
          It is true that the actual risk of unemployment encountered by each worker does not depend entirely on factors such as age
         and sex, but also, as stated by Mr Hlozek, on other factors specific to that person, such as his qualifications and professional
         mobility. The fact remains, however, that in the light of generally accepted experience at the time when the undertaking was
         restructured, management and labour could legitimately expect that workers approaching statutory retirement age constituted
         a category different from that of other workers as regards the likelihood of their not finding other employment. That assessment
         explains why the social plan provided for a difference in treatment, for the purposes of the grant of the bridging allowance,
         based directly on the age of the workers at the time of their dismissal.
         
         
         
         48
            
          Since, at the time the social plan was concluded, women were entitled to an early retirement pension under the statutory scheme
         from the age of 55, whereas men were entitled to such a pension only from the age of 60, management and labour took the view
         that, in order to ensure equal treatment for all workers, it was necessary for women to be entitled to the bridging allowance
         five years earlier than the age fixed for their male colleagues. That provision of the social plan was not intended to give
         rise to discrimination against male workers of the undertaking and nor did it have that effect. Male workers, such as Mr Hlozek,
         who were in the 50 to 54 years age group at the time of their dismissal were further away from the statutory age for early
         retirement and, accordingly, were not in a situation identical to that of female workers in the same age group in terms of
         the likelihood of unemployment to which they were exposed. 
         
         
         
         49
            
          It must therefore be noted that, in fixing different ages from which men and women would be entitled to the bridging allowance,
         the social plan provided for a neutral mechanism, which confirms the absence of any discrimination (see Birds Eye Walls, cited above, paragraph 23).
         
         
         
         50
            
          Furthermore, the provisions of the social plan of 26 February 1998 concerning the grant of a bridging allowance are not intended
         to apply generally or for an indefinite period. Those provisions were agreed on by management and labour for the purposes
         of a single restructuring operation of the undertaking and the payment of all bridging allowances granted to workers dismissed
         in the context of that operation is to end at the latest five years after their dismissal. Accordingly, contrary to the line
         of argument put forward by the Commission, there is no reason to fear that the application of the social plan will serve to
         reinforce or perpetuate the provisions of the statutory scheme in Austria which establish a difference in treatment between
         men and women as regards the age of entitlement to a retirement pension, even though there is a close link between the provisions
         of the social plan and those of the statutory scheme.
         
         
         
         51
            
          Accordingly, the answer to the first question should be that a bridging allowance such as that at issue in the main proceedings
         falls under the concept of ‘pay’ within the meaning of Article 141 EC and Article 1 of Directive 75/117. In circumstances
         such as those of the main proceedings, those provisions do not preclude the application of a social plan providing for a difference
         in the treatment of male and female workers in terms of the age at which they are entitled to a bridging allowance since,
         under the national statutory scheme governing early retirement pensions, they are in different situations with regard to the
         factors relevant to the grant of that allowance.
         
         The second and third questions
         
         52
            
          By its second question, the national court asks essentially whether the bridging allowance at issue in the main proceedings
         is an ‘occupational social security scheme’ within the meaning of Directive 86/378. By its third question, which is divided
         into two parts, it wishes to ascertain whether that bridging allowance is a ‘condition governing dismissal’ within the meaning
         of Article 5 of Directive 76/207 and, if so, whether that directive precludes such an allowance being granted in accordance
         with rules such as those laid down in the social plan at issue in the main proceedings.
         
         
         
         53
            
          In the light of the answer to the first question, namely that the bridging allowance falls under the concept of ‘pay’ within
         the meaning of Article 141 EC, the interpretation of Directives 86/378 and 76/207 is of no relevance to the outcome of the
         main proceedings. Accordingly, it is not necessary to answer the second and third questions referred to the Court.
         
         
         Costs
         54
            
          Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court,
         the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs
         of those parties, are not recoverable. 
         
         
         
         
         
         
            
            
         
         
          On those grounds, the Court (First Chamber) rules as follows:
         A bridging allowance such as that at issue in the main proceedings falls under the concept of ‘pay’ within the meaning of
               Article 141 EC and Article 1 of 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. In circumstances such as those of the
               main proceedings, those provisions do not preclude the application of a social plan providing for a difference in the treatment
               of male and female workers in terms of the age at which they are entitled to a bridging allowance, since, under the national
               statutory scheme governing early retirement pensions, they are in different situations with regard to the factors relevant
               to the grant of that allowance. Signatures.
      
      
          1 –
            
            Language of the case: German.