Dr. Pamela Mary Enderby v Frenchay Health Authority and Secretary of State for Health.
Date: 1993-10-27
10 The Court has consistently held that Article 177 of the Treaty provides the framework for close cooperation between national courts and the Court of Justice, based on a division of responsibilities between them. Within that framework, it is solely for the national court before which the dispute has been brought, and which must assume the responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of each case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the question which it submits to the Court (see, in particular, the judgment in Case C-67/91 Asociación Española de Banca Privada [1992] ECR I-4785, at paragraph 25). Accordingly, where the national court' s request concerns the interpretation of a provision of Community law, the Court is bound to reply to it, unless it is being asked to rule on a purely hypothetical general problem without having available the information as to fact or law necessary to enable it to give a useful reply to the questions referred to it (Case C-83/91 Meilicke [1992] ECR I-4871).
11 In this case, the Court of Appeal, like the tribunals which heard the case below, decided in accordance with the British legislation and with the agreement of the parties to examine the question of the objective justification of the difference in pay before that of the equivalence of the jobs in issue, which may require more complex investigation. It is for that reason that the preliminary questions were based on the assumption that those jobs were of equal value.
12 Where, as here, the Court receives a request for interpretation of Community law which is not manifestly unrelated to the reality or the subject-matter of the main proceedings, it must reply to that request and is not required to consider the validity of a hypothesis which it is for the referring court to verify subsequently if that should prove to be necessary.
The question referred
13 It is normally for the person alleging facts in support of a claim to adduce proof of such facts. Thus, in principle, the burden of proving the existence of sex discrimination as to pay lies with the worker who, believing himself to be the victim of such discrimination, brings legal proceedings against his employer with a view to removing the discrimination.
14 However, it is clear from the case-law of the Court that the onus may shift when that is necessary to avoid depriving workers who appear to be the victims of discrimination of any effective means of enforcing the principle of equal pay. Accordingly, when a measure distinguishing between employees on the basis of their hours of work has in practice an adverse impact on substantially more members of one or other sex, that measure must be regarded as contrary to the objective pursued by Article 119 of the Treaty, unless the employer shows that it is based on objectively justified factors unrelated to any discrimination on grounds of sex (Case 170/84 Bilka-Kaufhaus [1986] ECR 1607, at paragraph 31, Case C-33/89 Kowalska [1990] ECR I-2591, at paragraph 16, and C-184/89 Nimz [1991] ECR I-297, at paragraph 15). Similarly, where an undertaking applies a system of pay which is wholly lacking in transparency, it is for the employer to prove that his practice in the matter of wages is not discriminatory, if a female worker establishes, in relation to a relatively large number of employees, that the average pay for women is less than that for men (Case 109/88 Danfoss [1989] ECR 3199, at paragraph 16).
16 However, if the pay of speech therapists is significantly lower than that of pharmacists and if the former are almost exclusively women while the latter are predominantly men, there is a prima facie case of sex discrimination, at least where the two jobs in question are of equal value and the statistics describing that situation are valid.
17 It is for the national court to assess whether it may take into account those statistics, that is to say, whether they cover enough individuals, whether they illustrate purely fortuitous or short-term phenomena, and whether, in general, they appear to be significant.
18 Where there is a prima facie case of discrimination, it is for the employer to show that there are objective reasons for the difference in pay. Workers would be unable to enforce the principle of equal pay before national courts if evidence of a prima facie case of discrimination did not shift to the employer the onus of showing that the pay differential is not in fact discriminatory (see, by analogy, the judgment in Danfoss, cited above, at paragraph 13).
19 In these circumstances, the answer to the first question is that, where significant statistics disclose an appreciable difference in pay between two jobs of equal value, one of which is carried out almost exclusively by women and the other predominantly by men, Article 119 of the Treaty requires the employer to show that that difference is based on objectively justified factors unrelated to any discrimination on grounds of sex.
The second question
21 As is clear from Article 4 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 (OJ 1975 L 45, p. 19), collective agreements, like laws, regulations or administrative provisions, must observe the principle enshrined in Article 119 of the Treaty.
22 The fact that the rates of pay at issue are decided by collective bargaining processes conducted separately for each of the two professional groups concerned, without any discriminatory effect within each group, does not preclude a finding of prima facie discrimination where the results of those processes show that two groups with the same employer and the same trade union are treated differently. If the employer could rely on the absence of discrimination within each of the collective bargaining processes taken separately as sufficient justification for the difference in pay, he could, as the German Government pointed out, easily circumvent the principle of equal pay by using separate bargaining processes.
25 The Court has consistently held that it is for the national court, which has sole jurisdiction to make findings of fact, to determine whether and to what extent the grounds put forward by an employer to explain the adoption of a pay practice which applies independently of a worker' s sex but in fact affects more women than men may be regarded as objectively justified economic grounds (Case 170/84 Bilka-Kaufhaus, cited above, at paragraph 36 and Case C-184/89 Nimz, cited above, at paragraph 14). Those grounds may include, if they can be attributed to the needs and objectives of the undertaking, different criteria such as the worker' s flexibility or adaptability to hours and places of work, his training or his length of service (Case 109/88 Danfoss, cited above, at paragraphs 22 to 24).