Jämställdhetsombudsmannen v Örebro läns landsting.
Date: 2000-03-30
20 The midwives work under a three-shift system from 7 a.m. to 3.30 p.m., from 2 p.m. to 10 p.m., and from 9.30 p.m. to 7.30 a.m. The roster is drawn up for periods of 15 weeks. The JämO argues that midwives on the labour ward are the only group of workers who work on a shift basis in the Swedish health care sector.
28 The Landsting contends that the Court cannot answer the questions referred without first determining whether the duties in point in the main proceedings are of equal value. Since, in its submission, a midwife's duties are not comparable to those of a clinical technician, there can be no infringement of Article 119 of the Treaty.
30 In that respect, it should be borne in mind that Article 177 of the Treaty lays down the framework for close cooperation between the national courts and the Court of Justice based on the assignment to each of different functions. It is clear from the second paragraph of Article 177 that it is for the national court to decide at what stage in the proceedings it is appropriate for that court to refer a question to the Court of Justice for a preliminary ruling (see Joined Cases 36/80 and 71/80 Irish Creamery Milk Suppliers Association and Others [1981] ECR 735, paragraph 5).
31 It is true that the need to provide an interpretation of Community law which will be of use to the national court makes it essential to define the legal context in which the interpretation requested should be placed and that, in that respect, it may be convenient, in certain circumstances, for the facts of the case to be established and for questions of purely national law to be settled at the time the reference is made to the Court, so as to enable the latter to take cognisance of all the features of fact and of law which may be relevant to the interpretation of Community law which it is called upon to give (Irish Creamery Milk Suppliers Association, paragraph 6).
32 However, those considerations do not in any way restrict the discretion of the national court, which alone has a direct knowledge of the facts of the case and of the arguments of the parties, which will have to take responsibility for giving judgment in the case, and which is therefore in the best position to appreciate at what stage in the proceedings it requires a preliminary ruling from the Court of Justice (Case C-127/92 Enderby [1993] ECR I-5535, paragraph 10).
34 Whilst the description in this case of the factual and legal context does appear incomplete in some respects, thus preventing the Court from replying in various respects with the precision it would wish to the questions raised, the Court can none the less give a helpful ruling on the basis of the information before it. The Court may, however, depending on the circumstances, have occasion to leave open certain aspects of the questions raised (see Case C-266/96 Corsica Ferries France [1998] ECR I-3949, paragraph 25).
The first three questions
36 It should be recalled at the outset that Article 119 of the Treaty lays down the principle that men and women should receive equal pay for the same work or for work deemed to be of equal value. Thus, the same work or work deemed to be of equal value must be remunerated in the same way whether it is performed by a man or a woman. As the Court has already held in Case 43/75 Defrenne v Sabena (Defrenne II) [1976] ECR 455, paragraph 12, that principle is one of the foundations of the Community.
37 Furthermore, the Court has also held that Article 1 of Directive 75/117, which is essentially designed to facilitate the practical application of the principle of equal pay outlined in Article 119 of the Treaty, in no way alters the scope or content of that principle as defined in Article 119 (Case 96/80 Jenkins v Kingsgate [1981] ECR 911).
39 In that connection, the concept of pay, within the meaning of the second paragraph of Article 119 of the Treaty, 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 Barber, paragraph 12).
41 As to the manner in which salaries are negotiated at the level of the Landsting, it is common ground that, by reason of its mandatory character, Article 119 of the Treaty falls to be applied not only to provisions of law and regulations but also to collective agreements and individual contracts of employment (Joined Cases C-399/92, C-409/92, C-425/92, C-34/93, C-50/93 and C-78/93 Helmig [1994] ECR I-5727, paragraph 18).
43 With regard to the method to be adopted, in making such a comparison, for verifying compliance with the principle of equal pay, the Court has already held that if the national courts were under an obligation to make an assessment and a comparison of all the various types of consideration granted, according to the circumstances, to men and women, judicial review would be difficult and the effectiveness of Article 119 would be diminished as a result. It follows that genuine transparency, permitting effective review, is assured only if the principle of equal pay applies to each of the elements of remuneration granted to men or women (Barber, paragraph 34).
48 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, the work can be deemed to be of equal value (Case C-400/93 Royal Copenhagen [1995] ECR I-1275, paragraph 42).
49 Should that be the case, the Court finds that a comparison of the midwives' basic monthly salary with that of the clinical technicians shows that the midwives are paid less.
50 It follows that, in order to establish whether it is contrary to Article 119 of the Treaty and to Directive 75/117 for the midwives to be paid less, the national court must verify whether the statistics available indicate that a considerably higher percentage of women than men work as midwives. If so, there is indirect sex discrimination, unless the measure in point is justified by objective factors unrelated to any discrimination based on sex (Case C-167/97 Seymour-Smith and Perez [1999] ECR I-623, paragraph 65).
51 It is for the national court to determine whether a provision of national law, an agreement whose purpose is to regulate employment collectively or even unilateral action by an employer with respect to his staff, which, though applying independently of the sex of the worker, actually affects a considerably higher percentage of women than men, is justified by objective reasons unrelated to any discrimination on grounds of sex (Seymour-Smith and Perez, paragraph 67, and Case C-333/97 Lewen [1999] ECR I-0000, paragraph 26).
52 The national court must also ascertain, in the light of facts relating to the nature of the work done and the conditions in which it is carried out, whether those facts may be considered to be objective factors unrelated to any discrimination on grounds of sex such as to justify any differences in pay.
53 Finally, as the Advocate General pointed out at paragraph 36 of his Opinion, 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 deprived of the means of securing compliance with the principle of equal pay before national courts if evidence establishing a prima facie case of discrimination did not have the effect of imposing on the employer the onus of proving that the difference in pay is not in fact discriminatory (see Enderby, paragraph 18).
59 In that regard, the Court has already held that the fact that the fixing of certain working conditions may have pecuniary consequences is not sufficient to bring such conditions within the scope of Article 119, which is based on the close connection which exists between the nature of the services provided and the amount of remuneration (Case 149/77 Defrenne III [1978] ECR 1365, paragraph 21).
60 Consequently, the reduction in working time relates to working conditions and therefore falls under Directive 76/207 (Seymour-Smith and Perez, paragraph 37).