Edith Freers and Hannelore Speckmann v Deutsche Bundespost.
Date: 1996-03-07
10. In Case C-360/90  Arbeiterwohlfahrt der Stadt Berlin  v  Bötel  [1992] ECR I-3589 the Court held that Article 119 of the EEC Treaty and the Directive preclude national legislation applicable to a much greater number of women than men from limiting to their individual working hours the compensation, in the form of paid leave or overtime pay, which staff council members employed on a part-time basis are to receive from their employer for attending training courses which impart the knowledge necessary for working on staff councils and are held during the full-time working hours applicable in the undertaking but which exceed their own part-time working hours, when staff council members employed on a full-time basis are compensated for attendance of the same courses on the basis of full-time working hours.
16. It must be observed first of all that legal concepts and definitions established or laid down by national law cannot affect the interpretation or binding force of Community law, or, consequently, the scope of the principle of equal pay for men and women laid down in Article 119 of the Treaty and in the Directive and developed by the Court ' s case-law (see, most recently, Case C-457/93  Kuratorium für Dialyse und Nierentransplantation  v  Lewark  [1996] ECR I-0000, paragraph 20).
17. It is settled law that the concept of   " pay"  within the meaning of Article 119 of the Treaty comprises any 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, and irrespective of whether the worker receives it under a contract of employment, by virtue of legislative provisions or on a voluntary basis (see  Lewark , paragraph 21, and Case C-262/88  Barber  v  Guardian Royal Exchange Assurance Group  [1990] ECR I-1889, paragraph 12).
18. As the Court held in  Bötel , paragraph 14, although compensation such as that at issue in the main proceedings does not derive as such from the contract of employment, it is nevertheless paid by the employer by virtue of legislative provisions and under a contract of employment. Staff committee members must necessarily be employees of the undertaking, to be able to serve on that undertaking ' s staff committee.
23. The Court held in  Bötel  and  Lewark , with reference to national provisions similar to those at issue in the main proceedings, firstly that in principle they caused discrimination against women workers, contrary to Article 119 of the Treaty and the Directive, and secondly that it remained open to the Member State to prove that the legislation was justified by objective factors unrelated to any discrimination on grounds of sex.
24. It is settled law that although in preliminary-ruling proceedings it is for the national court to establish whether such objective factors exist in the particular case before it, the Court of Justice, which has to provide answers of use to the national court, may provide guidance based on the documents before the national court and on the written and oral observations which have been submitted to it, in order to enable the national court to give judgment (see,  inter alia , Case C-328/91  Secretary of State for Social Security  v  Thomas and Others  [1993] ECR I-1247, paragraph 13).
28. If a Member State is able to show that the measures chosen reflect a necessary aim of its social policy and are suitable and necessary for achieving that aim, the mere fact that the legislative provision affects far more women workers than men cannot be regarded as a breach of Article 119 and the Directive (see Case C-343/92  De Weerd, née Roks, and Others  v  Bestuur van de Bedrijfsvereniging voor de Gezondheid, Geestelijke en Maatschappelijke Belangen and Others  [1994] ECR I-571 and Case C-444/93  Megner and Scheffel  v  Innungskrankenkasse Vorderpfalz  [1995] ECR I-0000).
30. In so doing the national court must bear in mind that, as the Court held in  Bötel , paragraph 25, legislation such as that at issue is likely to deter workers in the part-time category, in which the proportion of women is undeniably preponderant, from performing staff committee functions or from acquiring the knowledge necessary for performing them, thus making it more difficult for that category of worker to be represented by qualified staff committee members.