Erika Steinicke v Bundesanstalt für Arbeit.
Date: 2003-09-11
49. In that regard, the scheme of part-time work for older employees is intended to reduce the normal working time, either by reducing the working hours at a uniform rate throughout the entire period concerned (part-time model), or by allowing the person concerned to cease work at an earlier date (two-stage model).  In each case the scheme affects the exercise of the occupation of the workers concerned by adjusting their working time (see, to that effect, Case C-187/00  Kutz-Bauer  [2003] ECR I-0000, paragraph 44).
51. The fact that joining that scheme may have pecuniary consequences for the worker concerned is not sufficient to bring such conditions within the scope of Article 141 EC or of Directive 75/117, those provisions being based on the close connection which exists between the nature of the work done and the amount of the worker ' s pay  (see, to that effect, the judgments in Case C-236/98  JämO  [2000] ECR I-2189, paragraph 59, and Case C-476/99  Lommers  [2002] ECR I-2891, paragraph 28).
57. In those circumstances, a provision such as that at issue results as a matter of fact in discrimination against female workers by comparison with male workers and must in principle be treated as contrary to Articles 2(1) and 5(1) of Directive 76/207.  It would be otherwise only if the difference of treatment found to exist between the two categories of worker were justified by objective factors unrelated to any discrimination based on sex (see, in that regard, Case 171/88  Rinner-Kühn  [1989] ECR 2743, paragraph 12; Case C-457/93  Lewark  [1996] ECR I-243, paragraph 31;  Hill and Stapleton , paragraph 34; Case C-226/98  Jørgensen  [2000] ECR I-2447, paragraph 29, and  Kutz-Bauer , cited above, paragraph 50).
58. It is for the national court, which alone has jurisdiction to assess the facts and to interpret the national legislation, to determine whether that is so.  It is necessary in that regard to ascertain, in light of all the relevant factors and taking into account the possibility of achieving by other means the aims pursued by the provisions in question, whether such aims appear to be unrelated to any discrimination based on sex and whether those provisions, as a means to the achievement of certain aims, are capable of advancing those aims (see, to that effect, Case C-167/97  Seymour-Smith and Perez  [1999] ECR I-623, paragraph 72, and  Kutz-Bauer , paragraph 51).
59. However, although in preliminary ruling proceedings it is for the national court to establish whether such objective reasons exist in the particular case before it, the Court of Justice, which is called on to provide answers of use to the national court, may provide guidance based on the documents in the file and on the written and oral observations which have been submitted to it, in order to enable the national court to give judgment (see  Hill and Stapleton , paragraph 36,  Seymour-Smith and Perez , paragraph 68, and  Kutz-Bauer , paragraph 52).
61. As regards the Bundesanstalt für Arbeit ' s argument based on employment policy and, in particular, encouraging of recruitment, it must be observed that the Member States are required to choose measures likely to attain the objectives pursued in the field of employment.  The Court has recognised that the Member States have a broad margin of discretion in exercising that power (see  Seymour-Smith and Perez , paragraph 74).
62. Furthermore, as the Court has already observed, encouragement of recruitment constitutes a legitimate aim of social policy ( Seymour-Smith and Perez , paragraph 71, and  Kutz-Bauer , paragraph 56).
63. However, the broad margin of discretion which the Member States enjoy in matters of social policy may not have the effect of frustrating the implementation of a fundamental principle of Community law such as that of equal treatment for men and women (see  Seymour-Smith and Perez , paragraph 75, and  Kutz-Bauer , paragraph 57).
64. Mere generalisations concerning the capacity of a specific measure to encourage recruitment are not enough to show that the aim of the disputed provisions is unrelated to any discrimination on grounds of sex or to provide evidence on the basis of which it could reasonably be considered that the means chosen are or could be suitable for achieving that aim ( Kutz-Bauer , paragraph 58).
66. With regard to the arguments put forward by the Bundesanstalt für Arbeit concerning cost-neutrality and the burden associated with planning and allocating posts in the German public sector, although budgetary considerations may underlie a Member State ' s choice of social policy and influence the nature or scope of the social protection measures which it wishes to adopt, they do not in themselves constitute an aim pursued by that policy and cannot therefore justify discrimination against one of the sexes  ( Roks and Others , paragraph 35, and  Kutz-Bauer , paragraph 59).
67. Moreover, to concede that budgetary considerations may justify a difference in treatment between men and women which would otherwise constitute indirect discrimination on grounds of sex would mean that the application and scope of a rule of Community law as fundamental as that of equal treatment between men and women might vary in time and place according to the state of the public finances of Member States  ( Roks and Others , paragraph 36, and  Kutz-Bauer , paragraph 60).
68. Nor can the Bundesanstalt für Arbeit, whether as a public authority or as an employer, justify discrimination arising from a scheme of part-time work for older employees solely because elimination of such discrimination would involve increased costs ( Kutz-Bauer , paragraph 61).
72. In the case of a breach of Directive 76/207 by legislative provisions introducing discrimination contrary to that directive, the national courts are required to set aside that discrimination, using all the means at their disposal, and in particular by applying those provisions for the benefit of the class placed at a disadvantage, and are not required to request or await the setting aside of the provisions by the legislature or otherwise ( Kutz-Bauer , paragraph 75).