Nicole Wippel v Peek & Cloppenburg GmbH & Co. KG.
Date: 2004-10-12
29. In order for a useful reply to be given to the referring court, it must first be determined whether a contract of employment, such as that in the present case, under which hours of work and the organisation of working time are dependent upon quantitative requirements in terms of work to be performed and are determined only on a case-by-case basis by common agreement of the parties comes within Directive 76/207, which establishes the principle of equal treatment as between men and women in regard, particularly, to working conditions, or whether it comes within Article 141 EC and Directive 75/117, on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women.
30. A contract of employment such as that at issue in the main proceedings lays down neither weekly working time nor the organisation of working time, which are dependent on quantitative requirements in terms of work to be performed, determined on a case-by-case basis by agreement between the parties. That being the case, the contract at issue affects the pursuit of occupational activity by the workers concerned by scheduling their working time according to need.
31. Accordingly, it must be held that such a contract lays down rules concerning working conditions within the meaning of, in particular, Article 5(1) of Directive 76/207.
32. Moreover, those rules on working conditions also come within the scope of the concept of employment conditions for the purposes of Clause 4(1) of the Framework Agreement annexed to Directive 97/81.
33. The fact that that type of contract has financial consequences for the worker concerned is not, however, sufficient to bring such conditions within the scope of Article 141 EC or of Directive 75/117, those provisions being based on the close connection which exists between the nature of the work done and the amount of the worker’s pay (see, to that effect, Case C-77/02 Steinicke [2003] ECR I-9027, paragraph 51).
40. In the light of the foregoing considerations the reply to the first question must be that a worker with a contract of employment, such as that in the main proceedings, under which hours of work and the organisation of working time are dependent upon the quantity of available work and are determined only on a case-by-case basis by agreement between the parties, comes within the scope of Directive 76/207.
Such workers also come within the scope of the Framework Agreement annexed to Directive 97/81 where:
– they have a contract or employment relationship as defined by the law, collective agreement or practices in force in the Member State;
– they are employees whose normal working hours, calculated on a weekly basis or on average over an employment period which may be up to a year, are less than those of a comparable full-time worker within the meaning of Clause 3(2) of that Framework Agreement, and
– in regard to part-time workers working on a casual basis, the Member State has not, pursuant to Clause 2(2) of the Framework Agreement, excluded them, wholly or partly, from the benefit of the terms of that agreement.
Second question
43. Secondly, in regard to Articles 2(1) and 5(1) of Directive 76/207, it is settled case-law that national provisions discriminate indirectly against women where, although worded in neutral terms, they work to the disadvantage of a much higher percentage of women than men, unless that difference in treatment is justified by objective factors unrelated to any discrimination on grounds of sex (see, in particular, Case C-226/98 Jørgensen  [2000] ECR I-2447, paragraph 29; Case C‑322/98 Kachelmann  [2000] ECR I-7505, paragraph 23; and Case C-25/02 Rinke [2003] ECR I-8349, paragraph 33).
46. It should be stated at the outset that it is clear both from Article 118a of the EC Treaty (Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC), which is the legal basis of Directive 93/104, and from the first, fourth, seventh and eighth recitals in the preamble as well as the wording of Article 1(1) itself, that the purpose of the directive is to lay down minimum requirements intended to improve the living and working conditions of workers through approximation of national provisions concerning, in particular, the duration of working time (Case C-173/99 BECTU  [2001] ECR I-4881, paragraph 37, and Case C-151/02 Jaeger [2003] ECR I-8389, paragraph 45).
47. According to the same provisions, such harmonisation at Community level in relation to the organisation of working time is intended to guarantee better protection of the safety and health of workers by ensuring that they are entitled to minimum rest periods – particularly daily and weekly – and adequate breaks and by providing for a ceiling on the duration of the working week (see Case C-303/98 Simap [2000] ECR I-7963, paragraph 49; BECTU , paragraph 38, and Jaeger , paragraph 46). That protection constitutes a social right conferred on each worker as an essential minimum requirement in order to ensure the protection of his security and health ( BECTU, paragraph 47).
54. In that regard, first, as has already been pointed out at paragraph 42 hereof, Clause 4 of the Framework Agreement annexed to Directive 97/81, in regard to employment conditions, precludes part-time workers from being treated less favourably than comparable full-time workers on the sole ground that they work part-time unless different treatment is warranted on objective grounds.
56. The prohibition on discrimination enunciated in the abovementioned provisions is merely a particular expression of a fundamental principle of Community law, namely the general principle of equality under which comparable situations may not be treated differently unless the difference is objectively justified (see Case C‑381/99 Brunnhofer  [2001] ECR I-4961, paragraph 28, and Case C-320/00 Lawrence and Others [2002] ECR I-7325, paragraph 12). That principle can therefore apply only to persons in comparable situations (Joined Cases C‑122/99 P and C-125/99 P D and Sweden  v Council  [2001] ECR I-4319, paragraph 48).