Viktor Hlozek v Roche Austria Gesellschaft mbH.
Date: 2004-12-09
35. According to the settled case-law on Article 119 of the Treaty, the concept of ‘pay’, within the meaning of Article 141 EC and Article 1 of Directive 75/117, 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. The fact that certain benefits are paid after the termination of the employment relationship does not prevent them from being in the nature of pay within the meaning of the abovementioned provisions (see, in particular, Barber , cited above, paragraph 12; and Case C-167/97 Seymour-Smith and Perez  [1999] ECR I-623, paragraphs 23 and 24).
37. As regards, in particular, the compensation granted by an employer to a worker on termination of his employment, the Court has already stated that such compensation is a form of deferred pay to which the worker is entitled by reason of his employment but which is paid to him on termination of the employment relationship with a view to enabling him to adjust to the new circumstances arising from such termination (see Barber , cited above, paragraph 13, and Case C‑33/89 Kowalska  [1990] ECR I-2591, paragraph 10; and Seymour-Smith and Perez , cited above, paragraph 25).
39. It is common ground that the abovementioned social plan was drawn up with a view to alleviating the social consequences of an operation to restructure the undertaking. Thus it reserves the benefit of the bridging allowance to workers who have reached an age close to the statutory retirement age at the time of their dismissal and provides that that allowance is to be paid to them for a maximum of five years, without their being required to perform any work. Consideration classified as pay specifically includes consideration paid by the employer under a contract of employment whose purpose is to ensure that workers receive income even where, in certain cases specified by the legislature, they are not performing any work provided for in their contracts of employment (see, to that effect, Case C-218/98 Abdoulaye and Others  [1999] ECR I-5723, paragraph 13 and case-law cited). Moreover, the fact that such benefits are in the nature of pay cannot be called in question merely because they can also be regarded as reflecting considerations of social policy (Case C-173/91 Commission  v Belgium  [1993] ECR I-673, paragraph 21; and Case C-7/93 Beune  [1994] ECR I‑4471, paragraph 45).
43. It must be borne in mind that the prohibition on discrimination between male and female workers contained in Article 141 EC, being mandatory, not only applies to the action of public authorities but extends also to all agreements which are intended to regulate paid labour collectively (see Case 43/75 Defrenne  [1976] ECR 455, paragraph 39; Kowalska , cited above, paragraph 12; and Case C-284/02 Sass  [2004] ECR I‑0000, paragraph 25).
44. However, in accordance with the Court’s case-law, the principle of equal pay, like the general principle of non-discrimination which it embodies in a specific form, presupposes that the men and women to whom it applies are in identical or comparable situations (see Case C‑132/92 Roberts  [1993] ECR I-5579 (‘ Birds Eye Walls ’), paragraph 17; Case C-342/93 Gillespie and Others  [1996] ECR I-475, paragraphs 16 to 18; Abdoulaye and Others , cited above, paragraph 16; and Case C-206/00 Mouflin  [2001] ECR I-10201, paragraph 28).
46. The Court notes that the social plan of 26 February 1998, adopted pursuant to the provisions of the ArbVG, was concluded between the undertaking and the elected body of the workforce with a view to alleviating the social consequences of the dismissal of a large number of employees as part of a merger with another company. In that context the social plan provided for a bridging allowance to be granted only to those workers who had reached a relatively advanced age at the time of their dismissal, thus taking account of the greater risk of long-term unemployment normally encountered by such workers.
48. Since, at the time the social plan was concluded, women were entitled to an early retirement pension under the statutory scheme from the age of 55, whereas men were entitled to such a pension only from the age of 60, management and labour took the view that, in order to ensure equal treatment for all workers, it was necessary for women to be entitled to the bridging allowance five years earlier than the age fixed for their male colleagues. That provision of the social plan was not intended to give rise to discrimination against male workers of the undertaking and nor did it have that effect. Male workers, such as Mr Hlozek, who were in the 50 to 54 years age group at the time of their dismissal were further away from the statutory age for early retirement and, accordingly, were not in a situation identical to that of female workers in the same age group in terms of the likelihood of unemployment to which they were exposed.