Ursula Voß v Land Berlin.
Date: 2007-12-06
24. In that regard, it should be borne in mind that Article 141 EC lays down the principle of equal pay for male and female workers for equal work. That principle forms part of the foundation of the European Community (see Case 43/75 Defrenne [1976] ECR 455, paragraph 12).
25. The principle of equal pay excludes not only the application of provisions leading to direct sex discrimination, but also the application of provisions which maintain different treatment between men and women at work as a result of the application of criteria not based on sex where those differences of treatment are not attributable to objective factors wholly unrelated to sex discrimination (Case 170/84 Bilka-Kaufhaus [1986] ECR 1607, paragraphs 29 and 30, Joined Cases C-399/92, C-409/92, C-425/92, C-34/93, C-50/93 and C-78/93 Helmig and Others [1994] ECR I-5727, paragraph 20, and Case C-285/02 Elsner-Lakeberg [2004] ECR I-5861, paragraph 12).
29. In that regard, it must be noted that there is unequal treatment wherever the overall pay of full-time employees is higher than that of part-time employees for the same number of hours worked on the basis of an employment relationship ( Helmig and Others , paragraph 26).
31. At paragraphs 26 to 30 of Helmig and Others , the Court held that there is no difference in treatment between part-time workers and full-time workers where the relevant national provisions provide for overtime supplements only in respect of hours worked in addition to normal working hours as fixed by collective agreement, and not in respect of those worked in addition to the normal working hours fixed for an individual. The Court found that, in those circumstances, part-time employees do, in fact, receive the same overall pay as full-time employees for the same number of hours worked, and that is so both where the hours worked by the part-time employee do not exceed the normal working hours as fixed by collective agreement and where they do, since the overtime supplements provided for in the latter situation are payable to both categories of worker.
32. By contrast, at paragraph 17 of Elsner-Lakeberg , the Court held that there is a difference in treatment between part-time and full-time workers where the applicable national provisions provide that all workers are required to work a minimum of three hours per month over and above their own normal working hours in order to be able to claim an overtime supplement.
38. In a situation where that difference in treatment affects a considerably higher number of women than men and to the extent that there are no objective factors wholly unrelated to sex discrimination which might justify such a difference in treatment, Article 141 EC precludes the relevant national legislation.
40. Nevertheless, in order to ascertain whether the difference in treatment found between full-time workers and part-time workers affects a considerably higher number of women than men, the national court must take into account all those workers subject to the national legislation in which the difference in treatment, established at paragraph 37 of the present judgment, has its origin. For that purpose, it is for the national court to determine whether that difference in treatment originates in the BBesG and/or in the MVergV, since, in principle, it is the scope of the legislation at issue which determines the category of persons who may be included in the comparison (Case C-256/01 Allonby [2004] ECR I-873, paragraph 73).
41. It must also be recalled, as the Court held at paragraph 59 of the judgment in Case C-167/97 Seymour-Smith and Perez [1999] ECR I-623, that the best approach to the comparison of statistics is to consider, on the one hand, the proportion of men in the workforce affected by the difference in treatment and, on the other, the proportion of women in the workforce who are so affected.
42. If the statistics available indicate that, of the workforce, the percentage of part-time workers who are women is considerably higher than the percentage of part-time workers who are men, it will be necessary to hold that such a situation is evidence of apparent sex discrimination, unless the legislation at issue in the main proceedings is justified by objective factors wholly unrelated to any discrimination based on sex (see, to that effect, Seymour-Smith and Perez , paragraphs 60 to 63).