Edeltraud Elsner-Lakeberg v Land Nordrhein-Westfalen.
Date: 2004-05-27
12. The Court notes that, according to settled case-law, the principle of equal pay, as enshrined in Article 141 EC and Article 1 of Directive 75/117, means that, for the same work or for work to which equal value is attributed, all discrimination on grounds of sex with regard to the aspects and conditions of remuneration is prohibited in so far as that different treatment cannot be justified by  an objective unrelated to sex or is not necessary to achieve the objective pursued (see to that effect, inter alia, Case C-236/98 JämO  [2000] ECR I-2189, paragraph 36; and Case C-381/99 Brunnhofer  [2001] ECR I-4961, paragraphs 27 and 28).
13. The Court has held, with respect to part-time workers, that the members of the class of persons placed at a disadvantage, be they men or women, are entitled to have the same scheme applied to them as that applied to the other workers, on a basis proportional to their working time (Case C-33/89 Kowalska  [1990] ECR I-2591, paragraph 19).
14. According to equally settled case-law, the term ‘pay’ referred to in Article 141 EC and Article 1 of Directive 75/117 comprises any other consideration, in cash or in kind, present or future, provided that the worker receives it, even indirectly, in respect of his employment from his employer (see in particular Case C-262/88 Barber  [1990] ECR I-1889, paragraph 12; and Brunnhofer , cited above, paragraph 33).
15. As regards the method to be used for comparing the pay of the workers concerned in order to determine whether the principle of equal pay is being complied with, again according to the case-law, genuine transparency permitting an effective review is assured only if that principle applies to each aspect of remuneration granted to men and women, excluding any general overall assessment of all the consideration paid to workers (see Barber , cited above, paragraphs 34 and 35; and Brunnhofer , cited above, paragraph 35). Accordingly, it is necessary for a separate comparison in respect of the pay for regular hours and the pay for additional hours.
17. Although that pay may appear to be equal inasmuch as the entitlement to remuneration for additional hours is triggered only after three additional hours have been worked by part-time and full-time teachers, three additional hours is in fact a greater burden for part-time teachers than it is for full-time teachers. A full-time teacher must work an additional three hours over his regular monthly schedule of 98 hours, which is approximately 3% extra, in order to be paid for his additional hours, whilst a part-time teacher must work three hours more than his monthly 60 hours, which is 5% extra. Since the number of additional teaching hours giving entitlement to pay is not reduced for part-time teachers in a manner proportionate to their working hours, they receive different treatment compared with full-time teachers as regards pay for additional teaching hours.
18. It is for the national court to determine, first, whether the different treatment established by the legislation in question affects considerably more women than men and, second, whether there is an objective unrelated to sex which justifies such different treatment and whether it is necessary to achieve the objective pursued (see, to that effect, Case C-278/93 Freers and Speckmann  [1996] ECR I-1165, paragraph 28).