Susanna Brunnhofer v Bank der österreichischen Postsparkasse AG.
Date: 2001-06-26
27 It should be recalled at the outset that Article 119 of the Treaty lays down the principle that the same work or work to which equal value is attributed must be remunerated in the same way, whether it is performed by a man or a woman (see, to that effect, inter alia Case C-236/98 JämO [2000] ECR I-2189, paragraph 36).
28 As the Court has already held in Case 43/75 Defrenne II [1976] ECR 455, paragraph 12, that principle, which is a particular expression of the general principle of equality which prohibits comparable situations from being treated differently unless the difference is objectively justified, forms part of the foundations of the Community.
29 The Court has also repeatedly held that the Directive is essentially designed to facilitate the practical application of the principle of equal pay laid down in Article 119 of the Treaty and in no way alters the scope or content of that principle as defined in Article 119 (see, in particular, Case C-262/88 Barber [1990] ECR I-1889, paragraph 11, and JämO, cited above, paragraph 37), so that the terms used in the Treaty article and in the Directive have the same meaning (see, as regards pay, Case C-167/97 Seymour-Smith and Perez [1999] ECR I-623, paragraph 35, and as regards the same work, Case C-309/97 Angestelltenbetriebsrat der Wiener Gebietskrankenkasse [1999] ECR I-2865, paragraph 23).
30 So understood, the fundamental principle laid down in Article 119 of the Treaty and elaborated by the Directive precludes unequal pay as between men and women for the same job or work of equal value, whatever the mechanism which produces such inequality (see Barber, cited above, paragraph 32), unless the difference in pay is justified by objective factors unrelated to any discrimination linked to the difference in sex (see, in particular, Case 129/79 Macarthys [1980] ECR 1275, paragraph 12, and Case C-243/95 Hill and Stapleton [1998] ECR I-3739, paragraph 34).
33 It is also settled case-law that the concept of pay in Article 119 of the Treaty and Article 1 of the Directive covers 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, inter alia, Barber, paragraph 12, and JämO, paragraph 39, both cited above).
35 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, paragraphs 34 and 35).
39 First, since the principle of equal pay as laid down in Article 119 of the Treaty and Article 1 of the Directive presupposes that the men and women to whom it applies are in identical or comparable situations (see, to that effect, Case C-132/92 Roberts [1993] ECR I-5579, paragraph 17), it must also be ascertained whether the employees concerned are performing the same work or work to which equal value may be attributed.
40 Second, the differences in treatment prohibited by Article 119 are exclusively those based on the difference in sex of the employees concerned (Case 96/80 Jenkins [1981] ECR 911, paragraph 10).
Determining whether work is the same or of equal value
42 In replying to this point raised by the reference, it must be borne in mind that it is clear from the Court's case-law that the terms the same work, the same job and work of equal value in Article 119 of the Treaty and Article 1 of the Directive are entirely qualitative in character in that they are exclusively concerned with the nature of the work actually performed (see Macarthys, cited above, paragraph 11, and Case 237/85 Rummler [1986] ECR 2101, paragraphs 13 and 23).
43 The Court has repeatedly held that, in order to determine whether employees perform the same work or work to which equal value can be attributed, it is necessary to ascertain whether, taking account of a number of factors such as the nature of the work, the training requirements and the working conditions, those persons can be considered to be in a comparable situation (see Case C-400/93 Royal Copenhagen [1995] ECR I-1275, paragraphs 32 and 33, and Angestelltenbetriebsrat der Wiener Gebietskrankenkasse, cited above, paragraph 17).
49 It is for the national court, which alone has jurisdiction to find and assess the facts, to determine whether, in the light of the actual nature of the activities carried out by those concerned, equal value can be attributed to them (JämO, cited above, paragraph 48).
52 As to that point, it should be observed that 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 in the matter of 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 having the discrimination removed (see Case C-127/92 Enderby [1993] ECR I-5535, paragraph 13).
53 However, it is clear from the case-law of the Court that the burden of proof may shift when this 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 (see Enderby, cited above, paragraph 14).
54 In particular, where an undertaking applies a system of pay with a mechanism for applying individual supplements to the basic salary, 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, paragraph 16).
57 In accordance with the normal rules of evidence, it is therefore for the plaintiff in the main proceedings to establish before the national court that the conditions giving rise to a presumption that there is unequal pay prohibited by Article 119 of the Treaty and by the Directive are fulfilled.
58 It is accordingly for the plaintiff to prove by any form of allowable evidence that the pay she receives from the Bank is less than that of her chosen comparator, and that she does the same work or work of equal value, comparable to that performed by him, so that prima facie she is the victim of discrimination which can be explained only by the difference in sex.
59 Contrary to what the national court seems to accept, the employer is not therefore bound to show that the activities of the two employees concerned are different.
60 If the plaintiff in the main proceedings adduced evidence to show that the criteria for establishing the existence of a difference in pay between a woman and a man and for identifying comparable work are satisfied in this case, a prima facie case of discrimination would exist and it would then be for the employer to prove that there was no breach of the principle of equal pay.
61 To do this, the employer could deny that the conditions for the application of the principle were met, by establishing by any legal means inter alia that the activities actually performed by the two employees were not in fact comparable.
62 The employer could also justify the difference in pay by objective factors unrelated to any discrimination based on sex, by proving that there was a difference, unrelated to sex, to explain the payment of a higher monthly supplement to the chosen comparator.
Objective justifications for unequal pay
65 In preliminary ruling proceedings, although it is ultimately for the national court, which alone is competent to assess the facts, to establish whether, in the particular case before it, there are objective grounds unrelated to any discrimination based on sex to justify such inequality, the Court of Justice, which is called on to provide answers of use to the national court, may nevertheless provide guidance based on the documents in the file and on the written and oral observations which have been submitted to it, in order to enable the national court to give judgment (see Seymour-Smith and Perez, cited above, paragraphs 67 and 68).
66 It is appropriate to recall here the case-law according to which a difference in the remuneration paid to women in relation to that paid to men for the same work or work of equal value must, in principle, be considered contrary to Article 119 of the Treaty and, consequently, to the Directive. It would be otherwise only if the difference in treatment were justified by objective factors unrelated to any discrimination based on sex (see, inter alia, Macarthys, paragraph 12, and Hill and Stapleton, paragraph 34).
67 Furthermore, the grounds put forward by the employer to explain the inequality must correspond to a real need of the undertaking, be appropriate to achieving the objectives pursued and necessary to that end (Case 170/84 Bilka [1986] ECR 1607, paragraph 36).
78 It should also be pointed out in this connection that, contrary to what the national court appears to accept, it is not possible to treat in the same way all the factors directly concerning the person of the employee and therefore, in particular, to assimilate the professional training necessary to perform the activity in question to its concrete results. Although professional training is a valid criterion not only for ascertaining whether or not employees are doing the same work, but also as an objective justification for a difference in pay granted to employees doing comparable work (see, to that effect, Angestelltenbetriebsrat der Wiener Gebietskrankenkasse, cited above, paragraph 19), that is because it is a factor which is objectively known at the time when the employee is appointed, whereas work performance can be assessed only subsequently and cannot therefore constitute a proper ground for unequal treatment right from the start of the employment of the employees concerned.