Andrea Krüger v Kreiskrankenhaus Ebersberg.
Date: 1999-09-09
14 It is clear, in particular, from the second recital in the preamble to Directive 76/207 that it does not apply to pay within the meaning of Article 119 of the Treaty (see Case C-342/93 Gillespie and Others v Northern Health and Social Services Board and Others [1996] ECR I-475, paragraph 24).
15 In that regard, it should be borne in mind that, according to settled case-law, the concept of pay, within the meaning of the second paragraph of Article 119 of the Treaty, comprises any other consideration, whether in cash or in kind, whether immediate or future, provided that the worker receives it, albeit indirectly, in respect of his employment from his employer (see, in particular, Case 12/81 Garland v British Rail Engineering [1982] ECR 359, paragraph 5; Case C-262/88 Barber v Guardian Royal Exchange Assurance Group [1990] ECR I-1889, paragraph 12; and Case C-167/97 R v Secretary of State for Employment ex parte Seymour-Smith and Perez [1999] ECR I-623, paragraph 23).
16 The Court made it clear in paragraph 10 of the judgment in Garland that the legal nature of that consideration is not important for the purposes of the application of Article 119 of the Treaty provided that it is granted in respect of the employment.
19 On the other hand, that principle precludes not only the application of provisions leading to direct sex discrimination, but also the application of provisions which maintain different treatment between men and women at work as a result of the application of criteria not based on sex where those differences of treatment are not attributable to objective factors unrelated to sex discrimination (see, in particular, Seymour-Smith and Perez, paragraph 52).
20 It should next be pointed out that since Article 119 is mandatory in nature, the prohibition of discrimination between male and female workers not only applies to the action of public authorities, but also extends to all collective agreements designed to regulate employment relationships and to contracts between individuals (see, in particular, Case C-184/89 Nimz v Freie und Hansestadt Hamburg [1991] ECR I-297, paragraph 11).
22 According to settled case-law, Article 119 of the Treaty precludes a national provision or a term of a collective agreement which applies independently of the sex of the worker, but actually affects a considerably higher percentage of women than men, unless that provision is justified by objective reasons unrelated to any discrimination on grounds of sex (see, to that effect, Seymour-Smith and Perez, paragraph 67; and Case 171/88 Rinner-Kühn v FWW Spezial-Gebäudereinigung [1989] ECR 2743, paragraph 12).
23 The exclusion of persons in minor employment from social insurance, which is laid down by the SGB, is intended to meet a social demand for minor employment which the German Government considered it should respond to in the context of its social and employment policy (see Case C-317/93 Nolte v Landesversicherungsanstalt Hannover [1995] ECR I-4625, paragraph 31; and Case C-444/93 Megner and Scheffel v Innungskrankenkasse Rheinhessen-Pfalz [1995] ECR I-4741, paragraph 27).
28 It is true that the Court has held that, as Community law now stands, social policy is a matter for the Member States. Consequently, it is for the Member States to choose the measures capable of achieving the aims of their social and employment policy. In exercising that competence, the Member States have a broad margin of discretion (see Nolte, paragraph 33; and Megner and Scheffel, paragraph 29).
29 However, the main proceedings concern a situation which is different from those in Nolte and Megner and Scheffel. In this case, it is not a question of either a measure adopted by the national legislature in the context of its discretionary power or a basic principle of the German social security system, but of the exclusion of persons in minor employment from the benefit of a collective agreement which provides for the grant of a special annual bonus, the result of this being that, in respect of pay, those persons are treated differently from those governed by that collective agreement.