Maria Kowalska v Freie und Hansestadt Hamburg.
Date: 1990-06-27
7 By its first question, the national court wishes to determine, essentially, whether, by virtue of Article 119 of the Treaty, it is unlawful, where the part-time work-force contains a much larger number of women than of men, for a collective agreement applying to the public service to provide that employers are to pay a severance grant on termination of the employment relationship only to full-time workers .
9 As the Court has held, the concept of pay, within the meaning of the second paragraph of Article 119 of the EEC Treaty, comprises any other consideration, whether in cash or kind, whether immediate or future, provided that the worker receives it, albeit indirectly, from his employer in respect of his employment ( see most recently the judgment of 17 May 1990 in Case C-262/88 Barber v Guardian Royal Exchange Assurance Group (( 1990 )) ECR I-1889, paragraph 12 ). Accordingly, 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 Article 119 of the Treaty .
10 In particular, compensation granted to a worker on termination of the employment relationship 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 to that effect the judgment of 17 May 1990 in Case C-262/88 Barber, supra ).
11 It follows that, in principle, compensation paid to a worker on termination of the employment relationship falls within the definition of pay contained in Article 119 of the Treaty .
12 The prohibition of discrimination between male and female workers contained in that provision, 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, as well as to contracts between individuals ( see judgment of 8 April 1976 in Case 43/75 Defrenne v Sabena (( 1976 )) ECR 455, paragraph 39 ).
16 It must therefore be stated in reply to the first question submitted by the national court that Article 119 of the EEC Treaty is to be interpreted as precluding the application of a clause in a collective wage agreement applying to the national public service under which employers may exclude part-time employees from the payment of a severance grant on termination of their employment when in fact a considerably lower percentage of men than of women work part time, unless the employer shows that the exclusion is based on objectively justified factors unrelated to any discrimination on grounds of sex .
The second question
19 It is apparent from the judgment of 13 December 1989 in Case C-102/88 Ruzius Wilbrink v Bestuur van de Bedrijfsvereniging voor Overheidsdiensten (( 1989 )) ECR 4311, that in a case of indirect discrimination the members of the class of persons placed at a disadvantage are entitled to have the same scheme applied to them as that applied to other workers, on a basis proportional to their working time . That ruling applies equally to discriminatory provisions in a collective agreement .
20 It must therefore be stated in reply to the second question that, where there is indirect discrimination in a clause in a collective wage agreement, the class of persons placed at a disadvantage by reason of that discrimination must be treated in the same way and made subject to the same scheme, proportionately to the number of hours worked, as other workers, such scheme remaining, for want of correct transposition of Article 119 of the EEC Treaty into national law, the only valid point of reference .