Vasiliki Nikoloudi v Organismos Tilepikoinonion Ellados AE.
Date: 2005-03-10
28. So far as concerns equal pay, in light of the very wording of Article 119 of the Treaty and of the case-law the work which may serve as a comparision need not be the same as that carried out by the person who invokes that principle of equality in his favour (see, inter alia, Case C-236/98 JämO  [2000] ECR I‑2189, paragraph 49, and Case C-320/00 Lawrence and Others  [2002] ECR I-7325, paragraph 4). The fact that a comparison is drawn in the context of Directive 76/207 would not in any way alter that conclusion.
29. It is for the national court, which alone has jurisdiction to assess the facts, to determine whether, in the light of facts relating to the nature of the work done and the conditions in which it is carried out, work of equal value to that performed by Ms Nikoloudi exists within OTE, without necessarily taking account of the working schedule on the basis of which the work is performed (see, to this effect, Case C-400/93 Royal Copenhagen  [1995] ECR I‑1275, paragraph 43, and JämO , cited above, paragraphs 20 and 49).
38. In any event, as the Advocate General has noted in point 33 of her Opinion, the fact that part-time work is remunerated at a lower hourly rate than full-time work does not systematically lead to the conclusion that there is discrimination in so far as the difference in pay between part-time work and full-time work is attributable to factors which are objectively justified and are unrelated to any discrimination on grounds of sex (see, to this effect, Case 96/80 Jenkins  [1981] ECR 911, paragraphs 10 and 11). In the present case the Court does not have the information necessary for such an examination.
44. It is settled case-law that a national measure involves indirect discrimination where, although worded in neutral terms, it works to the disadvantage of a much higher percentage of women than men (see Case C-1/95 Gerster  [1997] ECR I‑5253, paragraph 30, Case C-100/95 Kording  [1997] ECR I‑5289, paragraph 16, and Case C-313/02 Wippel  [2004] ECR I-0000, paragraph 43).
47. In such a case, provisions such as those at issue in the main proceedings result as a matter of fact in discrimination against female workers by comparison with male workers and must in principle be regarded as contrary to Article 3 of Directive 76/207 in that they concern access to established posts for the purposes of that article. It would be otherwise only if the difference of treatment between the two categories of worker were justified by factors unrelated to any discrimination on grounds of sex (see, to this effect, Case 171/88 Rinner-Kühn  [1989] ECR 2743, paragraph 12, and Case C-77/02 Steinicke  [2003] ECR I-9027, paragraph 57).
48. It is for the national court, which alone has jurisdiction to assess the facts and to interpret the national legislation, to determine whether such a justification exists. It is necessary in that regard to ascertain, in light of all the relevant factors and taking into account the possibility of achieving by other means the aims pursued by the provisions in question, whether those aims appear to be unrelated to any discrimination on grounds of sex and whether those provisions, as a means to the achievement of certain aims, are capable of advancing those aims (see, to this effect, Rinner-Kühn , cited above, paragraph 15, and Steinicke , cited above, paragraph 58).
49. However, although in preliminary ruling proceedings it is for the national court to establish whether such objective reasons exist in the particular case before it, the Court of Justice, which is called on to provide answers of use to the national court, may provide guidance based on the documents in the file and on the written and, as the case may be, oral observations which have been submitted to it, in order to enable the national court to give judgment (see Case C-328/91 Thomas and Others  [1993] ECR I-1247, paragraph 13, and Steinicke , paragraph 59).
52. Even supposing that this last argument put forward by OTE seeks to assert a legitimate aim falling within policy on economic development and job creation, it nevertheless constitutes a mere generalisation insufficient to show that the aim of the measures at issue is unrelated to any discrimination on grounds of sex (see, to this effect, Case C-167/97 Seymour-Smith and Perez  [1999] ECR I-623, paragraph 76).
53. Furthermore, although budgetary considerations may underlie a Member State’s choice of social policy and influence the nature or scope of the social protection measures which it wishes to adopt, they do not in themselves constitute an aim pursued by that policy and cannot therefore justify discrimination against one of the sexes (see Case C-343/92 Roks and Others  [1994] ECR I-571, paragraph 35, and Steinicke , paragraph 66).
55. As regards length of service, which is the subject of specific appraisal when the fourth question is answered (see, in particular, paragraphs 61 to 65 of this judgment), it need only be pointed out here that although, as the Advocate General observes in point 50 of her Opinion, length of service goes hand in hand with experience and generally enables workers to perform their tasks better, the objectivity of such a criterion depends on all the circumstances in each individual case (see, to this effect, Case C-184/89 Nimz  [1991] ECR I-297, paragraph 14, Gerster , cited above, paragraph 39, and Kording , cited above, paragraph 23).
65. If that court finds that the proportional taking into account of cleaners’ working hours performed on a part-time basis is justified by such reasons, the mere fact that the national provisions affect a much higher percentage of female workers than male workers cannot be regarded as a breach of Article 5 of Directive 76/207 (see, to this effect, Rinner-Kühn , cited above, paragraph 14, and Seymour-Smith and Perez , cited above, paragraph 69).
68. Directive 97/80, which applies to the situations covered by Article 119 of the Treaty and by Directives 75/117 and 76/207, provides in Article 4 that the Member States are to take such measures as are necessary to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of that principle.
69. This directive thus codified and expressly extended to the principle of equal treatment within the meaning of Directive 76/207 previous case-law according to which the burden of proof, which in principle lies with the worker, 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. Accordingly, when a measure distinguishing between employees on the basis of their hours of work has in practice an adverse impact on a substantially greater percentage of members of one or other sex, it is for the employer to show that there are objective reasons which justify the difference in pay that has been found (see Case C-127/92 Enderby  [1993] ECR I-5535, paragraphs 13, 14 and 18, and Case C-381/99 Brunnhofer  [2001] ECR I-4961, paragraphs 52, 53 and 60).
70. The national court has the task of verifying whether the Greek rules are consistent with Directive 97/80. If this examination reveals a doubt as to whether they are, it should be remembered, first, that in accordance with settled case-law, wherever the provisions of a directive appear, as far as their subject-matter is concerned, to be unconditional and sufficiently precise, those provisions may be relied upon by individuals before the national court as against the State, including organisations or bodies, whatever their legal form, which are subject to the authority or control of the State or have special powers beyond those which result from the normal rules applicable to relations between individuals (see, to this effect, Case C‑188/99 Foster and Others  [1990] ECR I‑3313, paragraphs 16, 18 and 20, and Case C-187/00 Kutz-Bauer  [2003] ECR I‑2741, paragraph 69).
71. However, a directive cannot of itself impose obligations on an individual and cannot therefore be relied upon as such against an individual (see, inter alia, Case C-91/92 Faccini Dori  [1994] ECR I-3325, paragraph 20, and Joined Cases C‑397/01 to C-403/01 Pfeiffer and Others  [2004] ECR I-0000, paragraph 108).
73. Second, it should be remembered that, in any event and in accordance with settled case-law, when a situation falls within the scope of a directive, the national court is bound, when applying national law, to interpret it, so far as possible, in the light of the wording and the purpose of the directive concerned in order to achieve the result sought by the directive (see, inter alia, Case C-106/89 Marleasing  [1990] ECR I-4135, paragraph 8, Faccini Dori , cited above, paragraph 26, and Pfeiffer and Others , cited above, paragraph 113).