Kuratorium für Dialyse und Nierentransplantation e.V. v Johanna Lewark.
Date: 1996-02-06
20 It must be observed first of all that legal concepts and definitions established or laid down by national law cannot affect the interpretation or binding force of Community law, or, consequently, the scope of the principle of equal pay for men and women laid down in Article 119 of the Treaty and in the Directive and developed by the Court' s case-law (see the judgments in Boetel, cited above, and in Case 75/63 Hoekstra v Bedrijfsvereniging Detailhandel [1964] ECR 177).
21 Secondly, as the Court has consistently held, the concept of pay within the meaning of Article 119 of the Treaty comprises any 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, and irrespective of whether the worker receives it under a contract of employment, by virtue of legislative provisions or on a voluntary basis (see the judgments in Boetel, cited above, paragraph 12, and in Case C-262/88 Barber v Guardian Royal Exchange Assurance Group [1990] ECR I-1889, paragraph 12).
22 As the Court held in Boetel, paragraph 14, although compensation such as that at issue in the main proceedings does not derive as such from the contract of employment, it is nevertheless paid by the employer by virtue of legislative provisions and under a contract of employment. Staff council members must necessarily be employees of the undertaking, to be able to serve on that undertaking' s staff council.
25 The Court held in 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 26, that there is unequal treatment whenever 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.
28 Since a difference in treatment has been found to exist, it follows from settled case-law that, if it were the case that a much lower proportion of women than men work full-time, the exclusion of part-time workers from certain benefits would be contrary to Article 119 of the Treaty where, taking into account the difficulties encountered by women workers in working full-time, that measure could not be explained by factors excluding any discrimination on grounds of sex (judgments in Case 96/80 Jenkins v Kingsgate [1981] ECR 911 and in Case 170/84 Bilka v Weber von Hartz [1986] ECR 1607).
31 It would be otherwise only if the difference of treatment found to exist was justified by objective factors unrelated to any discrimination based on sex. On this point, the Court held in Boetel, cited above, that it remained open to the Member State to prove that the legislation was justified by such factors.
32 However, although in preliminary-ruling proceedings it is for the national court to establish whether such objective factors exist in the particular case before it, the Court of Justice, which has to provide the national court with helpful answers, may provide guidance based on the documents before the national court and on the written and oral observations which have been submitted to it, in order to enable the national court to give judgment (see the judgment in Case C-328/91 Thomas and Others [1993] ECR I-1247, paragraph 13).
37 However, it should be noted that, as the Court held in Boetel, cited above, paragraph 25, legislation such as that at issue is likely to deter workers in the part-time category, in which the proportion of women is undeniably preponderant, from performing staff council functions or from acquiring the knowledge necessary for performing them, thus making it more difficult for that category of worker to be represented by qualified staff council members.