Helga Nimz v Freie und Hansestadt Hamburg.
Date: 1991-02-07
9 It appears from the documents before the Court that the present case concerns a system of practically automatic salary classification based on rules relating to length of service contained in a collective agreement. Those rules govern changes in the salary due as such to an employee who continues in the same type of work.
10 It follows that in such circumstances the rules governing what is practically an automatic reclassification in a higher salary grade come in principle within the concept of pay as defined in Article 119 of the Treaty.
11 Since Article 119 is mandatory in nature, the prohibition of discrimination between male and female workers not only applies to the action of public authorities, but also extends to all collective agreements designed to regulate employment relationships and to contracts between individuals (see most recently the judgment of 27 June 1990 in Case C-33/89 Kowalska v Freie und Hansestadt Hamburg [1990] ECR I-2591).
14 It should, however, be stated that such considerations, in so far as they are no more than generalizations about certain categories of workers, do not make it possible to identify criteria which are both objective and unrelated to any discrimination on grounds of sex (see the judgment of 13 July 1989 in Case 171/88 Rinner-Kuehn v FWW Spezial-Gebaeudereinigung [1989] ECR 2743). Although experience goes hand in hand with length of service, and experience enables the worker in principle to improve performance of the tasks allotted to him, the objectivity of such a criterion depends on all the circumstances in a particular case, and in particular on the relationship between the nature of the work performed and the experience gained from the performance of that work upon completion of a certain number of working hours. However, it is a matter for the national court, which alone is competent to evaluate the facts, to determine in the light of all the circumstances whether and to what extent a provision in a collective agreement such as that here at issue is based on objectively justified factors unrelated to any discrimination on grounds of sex.
15 The answer to the first question referred by the national court must therefore be that Article 119 of the EEC Treaty has to be interpreted as precluding a collective agreement, entered into within the national public service, from providing for the period of service of employees working for at least three-quarters of normal working time to be taken fully into account for reclassification in a higher salary grade, where only one-half of such period of service is taken into account in the case of employees whose working hours are between one-half and three-quarters of such normal working time and the latter group of employees comprises a considerably smaller percentage of men than women, unless the employer can prove that such a provision is justified by factors whose objectivity depends in particular on the relationship between the nature of the duties performed and the experience afforded by the performance of those duties after a certain number of working hours have been completed.
The second question
18 It follows from the judgment of 27 June 1990 in Case C-33/89, cited above, that, where there is indirect discrimination in a clause in a collective wage agreement, the class of persons placed at a disadvantage by reason of that discrimination must be treated in the same way and made subject to the same scheme as other workers, such scheme remaining, for want of correct application of Article 119 of the EEC Treaty in national law, the only valid system of reference.
19 It should also be pointed out that the Court has consistently held (see in particular the judgment of 9 March 1978 in Case 106/77 Amministrazione delle Finanze dello Stato v Simmenthal [1978] ECR 629) that a national court which is called upon, within the limits of its jurisdiction, to apply provisions of Community law is under a duty to give full effect to those provisions, if necessary by refusing of its own motion to apply any conflicting provision of national legislation, and it is not necessary for the court to request or await the prior setting aside of such provision by legislative or other constitutional means.
20 It is equally necessary to apply such considerations to the case where the provision at variance with Community law is derived from a collective labour agreement. It would be incompatible with the very nature of Community law if the court having jurisdiction to apply that law were to be precluded at the time of such application from being able to take all necessary steps to set aside the provisions of a collective agreement which might constitute an obstacle to the full effectiveness of Community rules.